THE  JOURNAL  OF  THE 

JOINT    COMMITTEE    OF    FIFTEEN 

ON  RECONSTRUCTION 

39TH  CONGRESS,  1865-1867 


BY 

BENJ.  B.  KENDRICK,  B.  S.,  A.  M., 

M 

Instructor  in  History,  Columbia  University 
Sometime  Schiff  Fellow  in  History,  Columbia  University 


SUBMITTED   IN   PARTIAL   FULFILMENT   OF   THE   REQUIREMENTS 

FOR   THE   DEGREE   OF   DOCTOR   OF   PHILOSOPHY 

IN  THE 

FACULTY  OF  POLITICAL  SCIENCE 
IN  COLUMBIA  UNIVERSITY 


NEW  YORK 
1914 


^ 


COPYRIGHT,  1914 

BY 
BENJ.  B.   KENDRICK 


So 

My  FATHER  AND  MOTHER 
WM.  T.  AND  LAVICIE  M.   KENDRICK 

TO  WHOSE  INFLUENCE  IS  DUE  MY  FIRST 

INTEREST  IN  THE  HISTORY  OF  THE 

RECONSTRUCTION  PERIOD 


305636 


PREFATORY  NOTE 

THE  primary  object  of  this  volume  is  to  make  available 
to  students  of  American  history  and  constitutional  law  an 
important  document,  hitherto  not  easily  accessible.  This 
document  is  the  journal  of  the  joint  committee  of  fifteen 
on  reconstruction  (39th  Congress,  1865-67).  Though  it 
relates  principally  to  the  genesis  of  the  fourteenth  amend 
ment,  it  throws  some  light  on  the  five  or  six  less  significant 
matters  with  which  the  committee  was  concerned.  Since 
there  is  only  one  printed  copy  of  the  journal  known  to  be 
extant,  its  value  as  an  historical  source  would  seem  to  jus 
tify  its  being  reprinted.  Therefore,  with  the  exception  of  a 
brief  introductory  chapter,  it  occupies  all  of  Part  I  of  this 
book. 

In  this  introductory  chapter,  there  will  be  found  (i)  a 
short  account  of  how  the  journal  came  into  existence;  (2) 
the  story  of  how  the  manuscript  copy  of  the  journal  was 
discovered;  (3)  a  discussion  of  the  influence  which  it  had 
on  the  Supreme  Court  in  determining  that  tribunal's  inter 
pretation  of  the  civil  rights  clause  of  the  fourteenth  amend 
ment.  Though  no  one  of  these  matters  bears  a  very  inti 
mate  relation  to  the  rest  of  this  volume,  yet  it  seems  that 
each  is  of  sufficient  interest  to  merit  the  space  given  it. 

In  Part  II,  the  first  two  chapters  deal  with  the  origin  and 
personnel  of  the  committee,  while  in  the  remaining  six  I 
have  endeavored  to  give  a  history  of  the  measures  that  were 
evolved  by  the  committee,  together  with  an  interpretation 
of  these  measures  and  an  analysis  of  the  motives  of  the  men 
who  championed  or  opposed  them. 

7]  7 


8  PREFATORY  NOTE  [g 

In  the  preparation  of  my  manuscript,  I  have  been  greatly 
assisted  by  my  kinsman,  Mr.  Thomas  Shields,  to  whom  I 
wish  to  acknowledge  my  appreciation.  My  colleagues,  Pro 
fessors  C.  A.  Beard  and  R.  L.  Schuyler,  have  kindly  given 
me  the  benefit  of  their  criticism  in  regard  to  the  intro 
ductory  chapter.  To  Professor  Wm.  A.  Dunning,  at  whose 
instance  this  work  was  begun,  and  who  has  read  all  the 
manuscript  and  made  many  helpful  suggestions,  I  desire  to 
express  my  indebtedness  and  gratitude. 

BENJ.  B.  KENDRICK. 

COLUMBIA  UNIVERSITY,  NEW  YORK,  JULY,  1914. 


CONTENTS 


PART   I 

INTRODUCTION  AND  THE  JOURNAL  OF  THE  JOINT 
COMMITTEE  ON  RECONSTRUCTION 

A.  INTRODUCTION 17 

How  the  journal  came  into  existence 17 

The  author's  discovery  of  the  manuscript  journal 18 

The  journal's  influence  on  the  Supreme  Court  in  its  interpre 
tation  of  the  fourteenth  amendment 22 

B.  THE  JOURNAL  OF  THE  JOINT  COMMITTEE  ON  RECONSTRUCTION.  37 


JlPART   II! 
THE  HISTORY  OF  THE  JOINT  COMMITTEE] 

CHAPTER  I 

ORIGIN  OF  THE  JOINT  COMMITTEE  Cj 
Presidential  reconstruction 


Opposition  to  the  President's  policy 

Thaddeus  Stevens'  initial  movements  against  the  President. 

Stevens  and  the  radical  caucus 

The  Republican  caucus 

Meeting  of  the  3Qth  Congress 

The  House  resolution  creating  the  committee 

Four  groups  of  political  opinion  in  the  Senate 

The  Senate's  amendment  of  the  House  resolution 

Attitude  of  various  senators  toward  a  committee 

Newspaper  comments  on  the  committee 

Political  situation  in  December,  1865 

Position  of  the  conservatives 

9] 


I0  CONTENTS  [I0 

PAGE 

CHAPTER  II 
MEMBERS  OF  THE  COMMITTEE 

Thaddeus  Stevens .    .  155 

Stevens'  early  life ...  155 

Beginning  of  his  political  career.    . 156 

First  election  to  Congress  (1847) 158 

His  attitude  toward  slavery 158 

Second  election  to  Congress  (1858) 160 

Attitude  toward  secession 161 

Stevens'  criticism  of  Lincoln 162 

The  "  conquered  province  "  theory  of  reconstruction 163 

Stevens'  plan  of  confiscation 166 

Estimates  of  Stevens 167 

Why  the  Republicans  accepted  his  leadership 168 

William  Pitt  Fessenden 169 

Fessenden's  early  life 170 

His  service  in  the  House  of  Representatives  (1841-1843) 170 

Election  to  the  Senate 172 

Fessenden  as  a  financier 173 

His  position  in  regard  to  reconstruction 173 

Fessenden  and  the  impeachment  of  Johnson          180 

Estimates  of  Fessenden 182 

John  A.  Bingham 183 

Roscoe  Conkling 185 

George  S.  Boutwell. 187 

J.  W.  Grimes 190 

George  H.  Williams 191 

Minor  members  of  the  committee  (Howard,  Merrill,  Washburne, 

Blow,  Harris)        192 

The  Democratic  members  (Johnson,  Grider,  Rogers) .  (ig{ 


CHAPTER  III 
REPRESENTATION  AND  CIVIL  RIGHTS 

The  problem  of  readjusting  the  basis  of  representation 198 

Representation  according  to  voters 199 

First  report  of  the  committee  on  representation 200 

Defeat  of  the  committee's  proposition  in  the  Senate 201 

Discussion  of  the  proposition  in  the  House 202 

Radical  opposition  in  the  Senate ....  .          (20^ 

Reduction  of  Southern  representation  versus  negro  suffrage.   .    .    .  fg£| 
Attitude  of  the  Democrats. (207 


CONTENTS 


Opinions  of  the  press  .............. 

Why  a  civil-rights  amendment  appeared  necessary  in  the  North. 
The  first  civil-rights  amendment  ............  .. 

Practical  defeat  of  the  measure  in  the  House 

Conservative  and  Democratic  opposition 

Bingham's  speech  advocating  the  civil-rights  amendment    ....    21*7 

CHAPTER    IV 

UNITING  THE  REPUBLICAN  CONGRESSMEN  AGAINST 
THE  PRESIDENT 

An  excursus  into  the  reconstruction  of  Tennessee    ........    221 

Testimony  taken  by  the  sub-committee  on  Tennessee  .......    225 

The  sub-committee  recommends  the  admission  of  the  Tennessee 

members  ................       .........    226 

Recommendation  not  adopted  by  the  joint  committee    ......    226 

Importance   of   Tennessee's    admission    in   the    struggle    between 

Johnson  and  the  radicals    ..........    .   .......   ('  227?' 

Radical  attempts  to  break  with  the  President.  ...    .......    230 

President's  veto  of  the  Freedmen's  Bureau  bill  tends  to  alienate  the 

Conservatives  ......  ...    ........  ....    233 

Declaratory  resolution  of  the  power  of  Congress  over  reconstruction.  234 
Wh}'  Johnson  vetoed  the  Freedmen's  Bureau  bill  .    .        .....  ^35^ 

Press  comment  on  the  veto  .  .........  (237, 

Action  of  the  House  on  the  declaratory  resolution   ........    239 

Johnson's  22nd  of  February  speech    ..............        242 

The  declaratory  resolution  before  the  Senate  ....    .......    243 

Its  passage  .........       ........       ........    249 

Johnson  fails  to  grasp  the  situation    ...............    250 

Stewart's  compromise  plan  of  reconstruction.    .........    252 

An  estimate  of  the  plan  .    .        ..................    253 

Stewart's  advocacy  of  his  plan  ..........    .    .    .    .....    254 

The  question  of  Tennessee's  admission  again  becomes  important  .    256 
Stevens'  attack  on  the  President    ................    260 

Johnson  vetoes  the  Civil  Rights  bill  and  the  breach  with  the  con 

servatives  becomes  complete  ..................    263 

./"CHAPTER  V 

RAISON  D'ETRE  OF  THE  FOURTEENTH  AMENDMENT 
Northern  interest  in  Southern  conditions    . 


.L'N  (JL  L11C1  11    111LC1C3L    111    OUUL11C111    CUllUlLlUHb f     2O4 

An  estimate  of  the  evidence  given  by  the  various  witnesses.    .   .    .    265 
What  the  Republicans  wished  to  prove  by  the  testimony 266 


I2  CONTENTS  [I2 


Evidence  showing  necessity  for  a  civil  rights  amendment 267 

The  Committee  satisfies  itself  that  an  amendment  in  regard  to  the 

National  and  Confederate  debts  is  necessary 282 

Why  Confederate  leaders  were  disqualified  from  holding  office  .  .  285 
The  disloyalty  of  the  Southern  people  justified  the  diminution  of 

their  representation 290 

t^CH  AFTER  VI 
THE  FOURTEENTH  AMENDMENT 

Demand  for  a  congressional  plan . 292 

Consideration  of  a  modification  of  the  Stewart  plan 293 

The  Robert  Dale  Owen  plan 296 

Owen's  recital  of  the  reception  of  his  plan  by  the  committee  .    .    .  298 

Owen's  plan  rejected 301 

The  committee's  first  draft  of  the  present  fourteenth  amendment  .  303 

The  fourteenth  amendment  before  the  House 304 

Debate    in   the    Senate  on   the    original    form    of   the   fourteenth 

amendment •   .  V3pjp 

Modification  of   the   amendment   by  the    Republican    senators  in 

caucus 316 

Hendricks'  denunciation  of  the  Republican  program 

Final  passage  of  the  amendment 3 

CHAPTER  VII 
DID  CONGRESS  HAVE  A  PLAN  OF  RECONSTRUCTION? 

Four  matters  throwing  light  on  the  question.    -  .......    320 

(1)  Fessenden's  report    ... 321 

Ambiguity  of  the  report 

(2)  Congressional  action  on  the  restoration  bill 

Temporary  postponement  of  the  bill          

Stevens'  first  reconstruction  bill 

Amendments  to  and  discussion  of  various  restoration  bills 
Why  the  radicals  refused  to  pass  any  restoration  bill  .    .    . 

Debate  on  the  restoration  bill  in  the  House 

The  bill  laid  on  the  table 

Stevens'  plea  for  his  reconstruction  bill 337 

Conclusion 337 

(3)  Restoration  of  Tennessee          338 

Ratification  of  the  fourteenth  amendment  by  the  Tennessee 

legislature    . .338 

Radical  opposition  to  admitting  Tennessee 339 


__ 

T-^Fhe 
[   Con 


CONTENTS 

PAGE 

Attitude  of  the  conservatives 

Action  of  the  Senate 345 

The  President's  message  on  Tennessee 

Opinion  of  politicians  as  to  the  Congressional  plan.    .    . 

four  matters  summarized 348 

Conclusions 352 

CHAPTER  VIII 
THE  RECONSTRUCTION  ACT 

hy  the   Republican  party  was  ready  to   forsake   the   fourteentli^-^ 

amendment  as  a  basis  of  reconstruction  (354 

Influence  of  disorder  in  the  South      ^~3$6' 

Stevens'  second  reconstruction  bill 358 

The  bill  debated  in  the  House  .   . 361 

Commitment  of  the  bill.    -    -  379 

A  military  bill  offered  in  the  committee 380 

The  military  bill  adopted  by  the  committee 382 

Debate  on  the  military  bill  in  Congress 383 

Refutation  of  the  radical  argument  as  to  the  prevalence  of  disorder^ 

in  the  South 

Effect  of  the  Southern  states'  rejection  of  the  fourteenth  amend^ 

ment  ....  

Embarrassing  position  of  the  conservatives 

The  Blaine  amendment  . ""397 

A  special  bill  for  reconstruction  of  Louisiana  passed  by  the  House.  398 

Plans  of  the  conservatives •Q9& 

Stevens'  final  plea  against  the  Blaine  amendment 40j 

Defeat  of  the  Blaine  amendment  in  the  House 

The  military  bill  before  the  Senate .    •    -    4 06 

The  bill  changed  so  as  to  incorporate  the  Blaine  amendment  .    .    .    407 

The  first  Reconstruction  act  as  a  finality. 408 

Sumner's  opposition  to  the  first  Reconstruction  act 408 

Differences  between  the  House  and  the  Senate 409 

Motives  of  Stevens  and  the  radicals          .    .       410 

The  Reconstruction  bill  further  amended  in  the  House 411 

The  bill  becomes  law 414 

End  of  the  joint  committee 414 


PART  I 

INTRODUCTION 
JOURNAL  OF  THE  JOINT  COMMITTEE 


INTRODUCTION 

( i )  When  the  Southern  Confederacy  collapsed  in  April, 
1865,  those  state  governments  which  were  regarded  as  hav 
ing  been  in  allegiance  to  it  were  not  recognized  by  any  Fed 
eral  official  as  legal.  They  were  forbidden  to  continue  in 
existence,  and  for  at  least  a  few  weeks  seven  of  the  late 
Confederate  states  were  entirely  without  civil  governments 
and  were  subject  to  the  Federal  military  authority  alone. 
In  four  states,  however,  Virginia,  Tennessee,  Louisiana, 
and  Arkansas,  loyal  civil  governments  had  been  instituted 
during  Lincoln's  administration  and  these  President  John 
son,  in  harmony  with  the  reconstruction  policy  of  his  prede 
cessor,  recognized  as  regular  and  legal.  Moreover,  in  pur 
suance  of  that  policy,  he  caused  loyal  civil  governments  to 
be  established  during  the  summer  of  1865  in  the  other  seven 
states.  By  December  most  of  these  Lincoln  and  John 
son  governments  were  performing  nearly  all  the  regular 
functions  of  state  governments,  and  so  far  as  the  Federal 
executive  department  was  concerned,  they  were  recognized 
as  having  resumed  their  normal  position  as  states  in  the 
Union. 

Though  they  had  formally  accepted  the  abolition  of  slav 
ery  and  the  invalidity  of  secession  as  the  accomplished  ob 
jects  of  the  war — and  certainly  few  people  were  saying  at 
that  time  that  the  war  had  been  waged  for  any  other  pur 
pose — yet  when  the  39th  Congress  met  in  December  of 
1865,  it  at  once  became  evident  that  the  majority  of  its 
members  were  in  no  mood  to  accept  unconditionally  the  re- 
construction  policy  that  had  been  developed  by  the  execu- 
17]  17 


!g  INTRODUCTION 

tive  department  of  the  Government.  There  was  no  con 
sensus,  however,  as  to  a  substitute  for  the  executive  policy. 
Hence  all  were  determined  not  to  act  precipitately  on  the 
reconstruction  question,  but  to  delay — some  with  the  hope 
of  coming  to  an  understanding  with  the  President,  others 
with  the  idea  ultimately  of  carrying  out  a  thorough  over 
hauling  of  southern  political,  economic,  and  social  condi 
tions.  These  latter  persons,  therefore,  determined  upon  the 
expedient  of  appointing  a  joint  committee  to  which  all 
matters  pertaining  to  reconstruction  should  be  referred. 
Since  the  object  of  the  radical  group  in  desiring  .the  ap 
pointment  of  this  committee  was  delay,  and  since  delay  was 
also  the  object  of  the  more  conservative  group,  the  latter 
readily  acquiesced  in  the  scheme.  It  was  the  members  of 
this  committee  who,  from  December,  1865,  to  March,  1867, 
determined  the  principles  of  reconstruction  that  finally 
were  carried  into  effect  in  the  South. 

The  chief  measure  that  was  evolved  within  this  com 
mittee  was  the  fourteenth  amendment  to  the  Constitution, 
and  the  journal  kept  by  the  committee's  clerk  is  by  far  the 
most  important  source  of  information  concerning  the  pro 
cess  by  which  the  framers  of  that  amendment  arrived  at 
the  conclusions  which  they  submitted  to  Congress.  Since 
the  manuscript  copy  of  this  journal  has  come  recently  into 
my  possession,  my  experience  in  finding  it  calls  for  a  few 
words  of  explanation. 

(2)  In  the  spring  of  1910,  I  was  engaged  in  preparing  an 
essay  on  the  report  of  the  reconstruction  committee.  In 
examining  some  of  the  secondary  material,  I  found  that 
both  Dr.  Rhodes  in  Volume  V  of  his  History  of  the  United 
States,  and  Dr.  Horace  Flack  in  his  work  on  the  fourteenth 
amendment,  referred  to  a  printed  copy  of  the  journal;  but 
upon  making  inquiry  I  discovered  that  both  of  them  had 
used  a  copy  that  was  then,  and  still  is,  in  the  Government 


I9]  INTRODUCTION  IOy 

Printing  Office  at  Washington.  None  of  the  larger  city  or 
university  libraries  of  the  country  possessed  a  copy.  This  I 
considered  strange,  and  so  decided  to  look  up  the  order  for 
printing.  After  some  search  I  found  that  it  was  not  until 
February  of  1884. that  the  Senate  of  the  United  States  had 
ordered  six  thousand  copies  to  be  printed.  From  the  fact 
that  the  journal  was  published  by  the  order  of  a  body  of 
men  who  could  have  had  but  little  interest  in  its  contents, 
together  with  the  fact  that  no  copies  were  to  be  found  even 
in  the  library  of  Congress  or  in  the  House  and  Senate 
libraries,  I  concluded  that  the  six  thousand  copies  were 
never  distributed.  This  conclusion  I  later  ascertained  from 
the  gentleman  who  in  1884  was  director  of  the  printing 
office,  was  correct. 

When  Senator  Morrill  of  Vermont,  \vho  had  been  a  mem 
ber  of  the  reconstruction  committee,  introduced,  on  Febru 
ary  5,  1884,  the  resolution  for  printing  the  journal,  he  ex 
hibited  the  manuscript  copy,  and  said :  "  At  the  decease  of 
Senator  Fessenden,  this  book,  containing  a  very  well-kept, 
clear  journal  for  a  year;  was  transferred  to  Portland, 
Maine,  and  not  until  recently  has  it  been  ascertained  that  it 
\vas  in  existence.  It  must  be  a  document  of  too  much  im 
portance  to  remain  out  of  print." 

This  gave  me  a  clue  and  I  determined  if  possible  to  find 
that  manuscript  copy  which  Morrill  then  exhibited.  I  al 
ready  knew  that  a  grandson  of  Senator  Fessenden,  Mr. 
James  D.  Fessenden,  of  the  New  York  bar,  had  been  the 
literary  executor  of  the  illustrious  Maine  statesman.  To 
him  I  accordingly  wrote,  and  ascertained  that  the  manu 
script  journal  had  been  in  his  possession,  but  at  an  auction 
sale  of  his  grandfather's  autograph  letters  in  1908,  it  had 
been  disposed  of;  to  whom  he  did  not  know.  I  then  had 
recourse  to  the  books  of  the  auction  company  which  had 
charge  of  the  sale,  and  after  considerable  difficulty  located 


20 


INTRODUCTION  [20 


the  purchaser.  This  proved  to  be  a  well-known  collector 
of  autograph  letters  and  original  documents,  but  upon  reach 
ing  his  house,  I  was  dismayed  to  find  that  he  had  recently 
sold  out  his  entire  collection  and  departed  for  Europe.  His 
sale  had  been  conducted  by  a  different  auction  company 
from  that  which  had  conducted  the  Fessenden  sale.  From 
an  examination  of  their  books,  I  discovered  that  they  had 
disposed  of  the  journal  to  an  autograph  dealer.  Fortu 
nately,  he  had  not  sold  it  before  I  reached  him,  and  I  suc 
ceeded  in  obtaining  it  for  the  Columbia  University  library 
which  had  commissioned  me  to  purchase  it. 

It  should  be  stated,  however,  that  the  journal  is  one  made 
up  from  the  notes  kept  by  the  clerk  of  the  committee  at  its 
various  sessions.  It  is  in  the  handwriting  of  the  second 
clerk  of  that  committee,  George  A.  Mark,  who  was  a  native 
of  Portland,  Maine,  and  was  appointed  to  his  position  on 
the  motion  of  Senator  Fessenden.  While  in  Washington 
in  the  summer  of  1910,  I  had  Mr.  Mark's  handwriting  veri 
fied  both  by  his  son,  who  is  now  living  in  that  city,  and  by  a: 
clerk  in  the  library  of  Congress,  where  Mr.  Mark  was  sub 
sequently  employed.  The  genuineness  of  the  journal  is 
also  testified  to  by  the  fact  that  in  it  were  several  loose 
sheets  containing  the  various  propositions  that  were  offered 
by  several  members  of  the  committee  for  amending  the  Con 
stitution  in  regard  to  the  apportionment  of  representatives. 
Each  of  these  resolutions  is  in  the  handwriting  of  the  indi 
vidual  member  who  offered  it.  Moreover,  one  of  these 
sheets  contains  Robert  Dale  Owen's  suggestion  for  a  four 
teenth  amendment,  which  is  discussed  in  Chapter  VI.  This 
is  in  the  hand  of  Owen  himself,  with  annotations  in  the 
hand  of  Thaddeus  Stevens. 

How  the  journal  which  had  been  in  Portland,  Maine, 
came  to  be  in  Washington  in  1884,  I  have  not  been 
able  to  determine  with  entire  satisfaction  to  myself.  I 


2i  ]  INTRODUCTION  21 

have  found,  however,  that  Roscoe  Conkling,  who  repre 
sented  the  defendant  in  the  case  of  San  Mateo  County 
versus  the  Southern  Pacific  Railroad,1  which  was  pending 
before  the  Supreme  Court  from  the  fall  of  1882  to  the 
spring  of  1885,  referred  to  the  journal  of  the  committee. 
In  his  oral  argument  Conkling  not  only  quoted  from  the 
journal,  but  definitely  stated  that  he  had  it  in  his  possession. 
Unfortunately,  he  did  not  tell  how  he  came  by  it.  He  said 
that  he  had  consulted  some  of  those  whose  opinions  it  pre 
served.  This  certainly  meant  Morrill,  who  was  then  the 
only  ex-member  of  the  committee  in  Congress,  though  two 
other  ex-members — Boutwell  and  Williams — were  prob 
ably  then  in  Washington.  Conkling  also  said :  "  It  seems 
odd  that  this  journal  has  never  been  printed  by  order  of 
either  house.  It  has  never  been  printed,  however,  or  pub 
licly  referred  to  before,  I  believe." 

From  the  two  facts  that  Conkling  consulted  Morrill  and 
thought  the  journal  ought  to  be  printed,  it  almost  certainly 
follows  that  it  was  from  Conkling  that  Morrill  obtained  it 
when  he  secured  the  passage  of  the  order  to  have  it  printed. 
Conkling,  in  turn,  had  doubtless  borrowed  it  from  the  son 
and  biographer  of  Senator  Fessenden,  General  Francis  Fes- 
senden,  who,  I  learned  from  Mr.  James  Fessenden,  was 
then  in  possession  of  all  the  Senator's  public  and  private 
papers.  After  the  case  was  decided  in  1885,  Conkling  evi 
dently  returned  the  manuscript  journal  to  General  Fessen 
den.  When  it  was  ordered  to  be  printed,  not  the  original, 
but  a  copy  was  sent  to  the  printer,  for  the  manuscript  now 
in  the  Columbia  University  library  shows  no  signs  of  ever 
having  been  in  a  printer's  hands.  The  printed  copy  in  the 
Government  Printing  Office,  however,  is  identical  in  contents 
with  the  manuscript  journal.  It  is  not  likely  that  Conkling) 

1  See  infra,  p.  28. 


22  INTRODUCTION  [22 

would  have  been  willing  to  let  the  original  copy,  which  he 
was  under  obligation  to  return  in  good  shape,  go  out  of  his 
hands  for  the  purpose  of  having  it  printed,  and  so  a  copy 
was  doubtless  made  for  that  purpose. 

(3)  As  said  before,  this  document  whose  history  has  been 
sketched  briefly  above  was  the  very  one  which  Roscoe  Conk- 
ling  used  with  such  telling  effect  in  one  of  the  crucial  cases 
in  the  process  by  which  what  has  been  termed  a  "  revolution 
in  our  constitutional  law,"  was  accomplished.1  By  "  revo 
lution  "  is  meant  that  change  whereby  the  states,  which 
since  the  death  of  Marshall  had  been  substantially  inde 
pendent  of  Federal  judicial  control,  were  again,  and  even 
more  completely  than  ever,  subjected  to  the  Federal  judici 
ary  by  the  interpretation  that  the  Supreme  Court  finally 
gave  to  section  i  of  the  fourteenth  amendment.  This  revo- 
hition  was  not  made  by  the  adoption  of  the  fourteenth 
amendment  itself  nor  indeed  by  the  earlier  interpretations  of 
that  amendment,  but  was  brought  about  partly  by  the 
change  in  the  personnel  of  the  Court  and  partly  by  a  change 
in  the  minds  of  the  judges  under  the  stimulus  of  powerful; 
counsel — a  change  which  a  layman  might  reasonably  regard 
as  a  flat  reversal,  but  which  the  trained  lawyer,  by  pointing 
out  differences  and  discriminations,  may  exhibit  as  orderly 
progressions  of  judicial  reasoning. 

The  first  time  the  Court  was  called  upon  to  interpret  sec 
tion  i  of  the  fourteenth  amendment  was  in  1872  in  the 
famous  Slaughter-House  cases.2 

Mr.  Justice  Miller  stated  in  the  following  words  the  opin 
ion  of  the  majority  of  the  Court  as  to  the  purpose  and  scope 
of  all  the  war  amendments  and  particularly  of  section  i  of 
the  fourteenth  amendment : 

1  Beard,  Contemporary  American  History,  ch.  in. 
-  16  Wallace,  36 


23  ]  INTRODUCTION  23 

On  the  most  casual  examination  of  the  language  of  these 
amendments,  no  one  can  fail  to  be  impressed  with  the  one 
pervading  purpose  found  in  them  all,  lying  at  the  foundation 
of  each,  and  without  which  none  of  them  would  have  been  even 
suggested ;  we  mean  the  freedom  of  the  slave  race,  the  security 
and  firm  establishment  of  that  freedom,  and  the  protection  of 
the  newly-made  freeman  and  citizen  from  the  oppressions  of 
those  who  had  formerly  exercised  unlimited  dominion  over 
him.  It  is  true  that  only  the  fifteenth  amendment,  in  terms, 
mentions  the  negro  by  speaking  of  his  color  and  his  slavery. 
But  it  is  just  as  true  that  each  of  the  other  articles  was  ad 
dressed  to  the  grievances  of  that  race,  and  designed  to  remedy 
them  as  the  fifteenth. 

Speaking  specifically  in  regard  to  the  first  section  of  the 
fourteenth  amendment,  Justice  Miller  continued: 

We  doubt  very  much  whether  any  action  of  a  state  not  directed 
by  way  of  discrimination  against  the  negroes  as  a  class,  or  on 
account  of  their  race,  will  ever  be  held  to  come  within  the 
purview  of  this  provision.  It  is  so  clearly  a  provision  for 
that  race  and  that  emergency,  that  a  strong  case  would  be 

necessary  for  its  application  to  any  other 

We  do  not  see  in  those  amendments  any  purpose  to  destroy 
the  main  features  of  the  general  system.  Under  the  pressure 
of  all  the  excited  feeling  growing  out  of  the  war,  our  states 
men  have  still  believed  that  the  existence  of  the  states  with 
powers  for  domestic  and  local  government,  including  the 
regulation  of  civil  rights — the  rights  of  person  and  of  property 
—was  essential  to  the  perfect  working  of  our  complex  form 
of  government,  though  they  have  thought  proper  to  impose 
additional  limitations  on  the  states,  and  to  confer  additional 
power  on  that  of  the  Nation. 

From  the  tone  of  this  opinion  it  is  clear  that  in  1872  the 
majority  of  the  Court  believed  that  section  i  of  the  four 
teenth  amendment  was  to  be  invoked  primarily  for  the  pro- 


24  INTRODUCTION  [24 

tection  of  the  freedmen  in  their  civil  rights.  The  judges 
were  unwilling  to  give  that  section  an  interpretation  which 
would  render  corporations  wholly  or  partly  immune  from 
state  regulation  by  narrowly  restricting  the  state's  police 
power.  Again  in  1876,  the  Court  refused  to  interpret  the 
fourteenth  amendment  in  such  a  way  as  to  hold  invalid  a 
state  statute  regulating  corporations.  In  the  case  of  Munn 
v.  Illinois,1  it  was  called  upon  to  determine  whether  the 
legislature  of  Illinois  could  fix  by  law  the  maximum  charge 
for  the  storage  of  grain  in  warehouses.  Chief  Justice 
Waite,  in  delivering  the  opinion  of  the  court,  said : 

It  is  insisted,  however,  that  the  owner  of  property  is  entitled 
to  a  reasonable  compensation  for  its  use,  even  though  it  be 
clothed  with  a  public  interest,  and  that  what  is  reasonable  is  a 
judicial  and  not  a  legislative  question. 

As  has  already  been  shown,  the  practice  has  been  otherwise. 
In  countries  where  the  common  law  prevails,  it  has  been 
customary  from  time  immemorial  for  the  legislature  to  declare 
what  shall  be  a  reasonable  compensation  under  such  circum 
stances,  or,  perhaps,  more  properly  speaking,  to  fix  a  maximum 
beyond  which  any  charge  made  would  be  unreasonable 

We  know  that  this  is  a  power  which  may  be  abused;  but 
that  is  no  argument  against  its  existence.  For  protection 
against  abuses  by  legislatures  the  people  must  resort  to  the 
polls,  not  to  the  courts. 

At  a  later  period,  however,  this  position  in  large  measure 
was  abandoned.  In  a  series  of  cases  extending  from  1889 
to  1898,  the  Court,  by  virtue  of  that  section  of  the  four 
teenth  amendment  which  denies  to  a  state  the  right  to  "  de 
prive  any  person  of  life,  liberty,  or  property,  without  due 
process  of  law,"  has  undertaken  to  declare  null  and  of  no 
effect  state  laws  which  seemed  to  fix  the  fares  and  freights 

*94U.  S.  113. 


25]  INTRODUCTION  2$ 

of  railroads  and  the  charges  of  other  public  corporations 
unreasonably  low.  As  Professor  Beard  says,  "  The  Court 
has  moved  from  the  doctrine  of  non-interference  with  state 
legislatures  to  the  doctrine  that  it  is  charged  with  the  high 
duty  of  reviewing  all  and  every  kind  of  economic  legislation 
by  the  states."  l 

In  the  case  of  Chicago,  Milwaukee  and  St.  Paul  Railroad 
Company  v.  Minnesota,  the  Court  said: 

The  question  of  the  reasonableness  of  a  rate  of  charge  for 
transportation  by  a  railroad  company,  involving  as  it  does  the 
element  of  reasonableness  both  as  regards  the  company  and  as 
regards  the  public  is  eminently  a  question  for  judicial  investi 
gation  requiring  due  process  of  law  for  its  determination.  If 
the  company  is  deprived  of  the  power  of  charging  reasonable 
rates  for  the  use  of  its  property,  and  such  deprivation  takes 
place  in  the  absence  of  an  investigation  by  judicial  machinery, 
it  is  deprived  of  the  lawful  use  of  its  property,  and  thus  in 
substance  and  effect,  of  the  property  itself  without  due  process 
of  law  and  in  violation  of  the  Constitution  of  the  United 
States. 

In  the  foregoing  case,  it  happened  that  the  rates  which 
the  Court  declared  unreasonably  low,  were  not  fixed  di 
rectly  by  the  state  legislature,  but  by  a  railroad  commission. 
The  climax  of  "  judicial  supremacy  "  was  reached  in  1898 
in  the  case  of  Smyth  v.  Ames,2  in  which  the  Court  held  a 
Nebraska  statute  unconstitutional,  because  it  fixed  the  maxi 
mum  rates  to  be  charged  by  railroad  companies  so  low  as  to 
be  practically  confiscatory.  The  Court  held  that  the  follow 
ing  principles  were  settled  law : 

i.  A  railroad  corporation  is  a  person  within  the  meaning 
of  the  fourteenth  amendment  declaring  that  no  state  shall  de- 

1  Contemporary  American  History,  p.  73. 
1  169  U.  S.  466. 


26  INTRODUCTION  [26 

prive  any  person  of  property  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protection 
of  the  laws. 

2.  A  state  enactment,  or  regulations  made  under  the  au 
thority  of  a  state  enactment,  establishing  rates  for  the  trans 
portation  of  persons  or  property  by  railroad  that  will  not 
admit  of  the  carrier  earning  such  compensation  as  under  all 
the  circumstances  is  just  to  it  and  to  the  public,  would  deprive 
such  carrier  of  its  property  without  due  process  of  law  and 
deny  to  it  the  equal  protection  of  the  laws,  and  would  there 
fore  be  repugnant  to  the  fourteenth  amendment  of  the  Con 
stitution  of  the  United  States.  r 

3.  While  rates  for  the  transportation  of  persons  and  prop 
erty  within  the  limits  of  a  state  are  primarily  for  its  deter 
mination,  the  question  whether  they  are  so  unreasonably  low 
as  to  deprive  the  carrier  of  its  property  without  such  com 
pensation  as  the  Constitution  secures,  and  therefore  without 
due  process  of  law,  cannot  be  so  conclusively  determined  by 
the  legislature  of  the  state  or  by  regulations  adopted  under 
its  authority,  that  the  matter  may  not  become  the  subject  of 
judicial  inquiry. 

It  is  clear  that  the  Supreme  Court  in  the  decade  from 
1889  to  1898  did  depart  from  its  earlier  position  as  an 
nounced  in  1872  and  1876  in  the  Slaughter-House  cases 
and  in  Munn  v.  Illinois  respectively.  This  change  in  the  at 
titude  of  the  Court  toward  the  fourteenth  amendment  has 
given  rise  to  the  opinion  that  "  although  it  was  a  humani 
tarian  measure  in  origin  and  purpose,  and  was  designed  as  ai 
charter  of  liberty  for  human  rights,  it  has  become  the 
Magna  Charta  of  accumulated  wealth  and  organized  capi 
tal."  x 

In  making  the  change  to  the  broad  doctrine  that  the  Court 
should  exercise  judicial  control  over  all  kinds  of  legisla- 

1  Collins,  The  Fourteenth  Amendment  and  the  States,  p.  138. 


INTRODUCTION  27 

tion,  two  fundamental  doctrines  were  necessary.  One  was 
that  the  power  to  regulate  corporations  could  not  be  exer 
cised  in  such  a  manner  as  to  deprive  them  of  the  right  to 
earn  a  fair  return  on  the  capital  invested.  With  that  we 
are  not  concerned  here.  The  second  doctrine,  just  as 
fundamental,  is  that  which  was  laid  down  as  settled 
law  in  Smyth  v.  Ames,  "  that  a  corporation  is  a  person 
within  the  meaning  of  the  fourteenth  amendment."  In 
1886,  twelve  years  before  this  case  was  decided,  this  prin 
ciple  was  first  stated  by  Chief  Justice  Waite.  The  Court 
was  ready  to  receive  arguments  in  the  case  of  Santa  Clara 
County  v.  The  Southern  Pacific  Railroad,1  when  the  Chief 
Justice  said :  "  The  Court  does  not  wish  to  hear  arguments 
on  the  question  whether  the  provision  in  the  fourteenth 
amendment  to  the  Constitution,  which  forbids  a  state  to 
deny  to  any  person  within  its  jurisdiction  the  equal  protec 
tion  of  the  laws,  applies  to  corporations.  We  are  all  of  the 
opinion  that  it  does." 

This  announcement,  which  may  be  regarded  as  a  dictum, 
was  affirmed  in  1888  as  a  part  of  the  decision  in  the  case  of 
Pembina  Mining  Company  v.  Pennsylvania,2  in  which  the 
court  said : 

The  inhibition  of  the  fourteenth  amendment  that  no  state 
shall  deprive  any  person  within  its  jurisdiction  of  the  equal 
protection  of  the  laws  was  designed  to  prevent  any  person  or 
class  of  persons  from  being  singled  out  as  a  special  subject 
for  discriminating  and  hostile  legislation.  Under  the  designa 
tion  of  "  person  "  there  is  no  doubt  that  a  private  corporation 
is  included.  Such  corporations  are  merely  associations  of  in 
dividuals  united  for  a  special  purpose,  and  permitted  to  do 
business  under  a  particular  name,  and  have  a  succession  of 
members  without  dissolution. 

1  118  U.  S.  394.  *  125  U.  S.  181. 


2g  INTRODUCTION  [28 

In  1889,  in  the  case  of  Minneapolis  and  St.  Louis  Rail 
road  Company  v.  Beckwith,1  the  Court  decided  that  a  cor 
poration  was  a  person  within  the  meaning  of  both  the  "due 
process  of  law  "  and  the  "  equal  protection  of  the  laws  " 
clauses  of  the  fourteenth  amendment.  ;<  These  cases,  con 
sidered  together  as  one  opinion,"  says  a  recent  writer,3 
"  mark  one  of  the  most  important  developments  in  our  con 
stitutional  history.  In  an  address  before  the  University  of 
Berlin  in  1908,  President  Hadley,  of  Yale  University,  de 
clared  them  to  rank  with  the  Dartmouth  College  case  in 
their  restraining  effects  upon  the  states  in  relation  to  the 
corporations.  They  opened  the  door  for  organized  capital 
to  contest  whatever  laws  of  the  states  it  considered  disad 
vantageous." 

How  the  Court  was  induced  to  abandon  the  attitude  of 
non-interference  and  assume  judicial  control  in  the  widest 
sense  has  never  been  made  the  subject  of  historical  inquiry. 
When  that  study  is  made,  first  rank  will  be  given  to  a  dra 
matic  episode  which  occurred  in  the  argument  of  the  San 
Mateo  case,  when  Roscoe  Conkling,  a  member  of  the  com 
mittee  which  drafted  the  fourteenth  amendment,  produced 
in  the  court  room  a  copy  of  the  journal  of  his  committee 
and  revealed  for  the  first  time  what  purported  to  be  the  real 
intention  of  those  who  framed  the  fourteenth  amendment. 
It  is  to  point  out  the  part  played  by  the  journal  of  the  com 
mittee  in  the  beginning  of  this  legal  revolution  that  the 
foregoing  digression  into  the  realm  of  constitutional  law 
has  been  made. 

In  the  case  of  San  Mateo  County  v.  The  Southern  Pacific 
Railroad  Company,3  the  defendant  maintained  that  the  state 

1  129  U.  S.  26. 

2  Collins,  op.  cit.,  pp.  128,  129. 
8  116  U.  S.  138. 


29]  INTRODUCTION  2g 

of  California  in  assessing  the  value  of  its  property  had  vio 
lated  that  section  of  the  fourteenth  amendment  which  for 
bids  a  state  to  deny  to  any  person  within  its  jurisdiction  tha 
equal  protection  of  the  laws.  The  San  Mateo  case  was 
argued  on  December  19,  1882,  by  which  date  railroad  com 
panies,  especially  in  the  West,  were  coming  to  be  the  objects 
of  what  they  considered  invidious  state  legislation,  and  sub 
jected  to  an  unequal  and  exorbitant  rate  of  taxation.  Under 
these  circumstances  the  companies  determined  to  appeal  to 
the  Supreme  Court  for  protection.  Collis  P.  Huntington,  a 
well-known  railroad  magnate  of  the  old  school,  was  at  that 
time  president  of  the  Southern  Pacific.  His  principal  attor 
ney  as  well  as  personal  friend  was  Roscoe  Conkling,  a  re 
cently  resigned  senator  from  New  York,  who  was  then  de 
voting  his  entire  time  to  his  legal  profession.  Huntington 
selected  Conkling  as  his  chief  counsel,  and  upon  the  latter 
devolved  the  onerous  task  of  convincing  a  majority  of  the 
members  of  the  Supreme  Court  that  the  opinion  of  Justice 
Miller  in  the  Slaughter-House  cases  was  based  upon  a  mis 
conception  of  the  intent  of  the  framers  of  section  i  of  the 
fourteenth  amendment.  Conkling  undertook  to  show  that 
the  reconstruction  committee,  of  which  he  had  been  a  mem 
ber,  had  designed  that  section  as  much  for  the  protection 
of  white  people  as  negroes  against  discriminating  state  leg 
islation.  Having  accomplished  this,  his  next  purpose  was 
to  prove  that  though  the  word  person  was  placed  in  juxta 
position  with  citizen,  the  two  were  not  synonymous;  that 
the  fortner  in  this  section  had  its  ordinary  juristic  mean 
ing,  and  hence  included  artificial  persons  (i.  e.,  corpora 
tions)  as  well  as  natural  persons.  There  is  no  doubt  that 
Conkling's  argument  at  this  time  marks  the  beginning  of 
that  important  revolution  in  our  law  which  has  been  briefly 
sketched  above. 

In  the  earlier  decisions  which  involved  the  fourteenth 


30  INTRODUCTION  [30 

amendment,  the  Court  seems  to  have  been  unusually  prone 
to  take  into  consideration  the  intention  of  the  framers  of 
that  amendment.  Since  Conkling  had  been  a  member  of 
the  committee  which  drafted  the  fourteenth  amendment,  he 
may  have  been  presumed  to  have  been  in  an  excellent  posi-< 
tion  to  interpret  the  intentions  of  himself  and  his  colleagues. 
But  that  was  not  all.  He  occupied  a  still  stronger  strategic 
position  in  that  he  was  armed  with  the  very  journal  of  the 
committee,  and  with  it  proceeded  to  show  that  the  committee 
did  not  expect  that  the  operation  of  the  amendment  would 
be  confined  merely  to  the  protection  of  the  freedmen.  Be 
cause  of  the  importance  of  Conkling's  speech  in  the  history 
of  our  jurisprudence,  I  will  venture  to  give  rather  copiousj 
extracts  from  it. 

I  come  now  to  say  that  the  Southern  Pacific  Railroad  Com 
pany  is  among  the  "  persons  "  protected  by  the  fourteenth 
amendment 

The  idea  prevails — it  is  found  in  the  opinion  of  the  Court 
in  the  Slaughter-House  cases;  it  has  found  broad  lodgment 
in  the  public  understanding ;  that  the  fourteenth  amendment — 
nay  I  might  say  all  three  of  the  latter  amendments  were  con 
ceived  in  a  single  common  purpose — that  they  came  out  of  one 
and  the  same  crucible,  and  were  struck  by  the  same  die;  that 
they  gave  expression  to  only  one  single  inspiration.  The  im 
pression  seems  to  be  that  the  fourteenth  amendment  especially 
was  brought  forth  in  the  form  in  which  it  was  at  last  ratified 
by  the  states,  as  one  entire  whole,  beginning  and  ending  as  to 
the  first  section  at  least,  with  the  protection  to  the  freedmen 
of  the  South. 

Conkling  then  criticized  Justice  Miller's  opinion  in  the 
Slaughter-House  cases  as  to  the  "  pervading  spirit "  of  all 
the  war  amendments. 

It  may  shed  some  modifying  light  on  this  supposition,  to 


3i  ]  INTRODUCTION  31 

trace  the  different  proposals,  independent  of  each  other,  origin 
ating  in  different  minds,  and  at  different  times,  not  in  the 
order  in  which  they  now  stand,  which  finally,  by  what  might 
be  called  the  attrition  of  parliamentary  processes  in  the  com 
mittee  and  in  Congress,  came  to  be  collected  in  one  formulated 
proposal  of  amendment. 

These  originally  separate,  independent  propositions,  came 
from  a  joint  committee  of  the  two  Houses.  The  committee 
sat  with  closed  doors.  A  journal  of  its  proceedings  was  kept 
by  an  experienced  recorder  from  day  to  day. 

It  seems  odd  that  such  a  journal  has  never  been  printed  by 
order  of  the  two  Houses.  It  has  never  been  printed,  how 
ever,  or  publicly  referred  to  before,  I  believe. 

Having  consulted  some  of  those  whose  opinions  it  preserves, 
and  having  the  record  in  my  possession,  I  venture  to  produce 
some  extracts  from  it,  omitting  names  in  connection  with 
votes.1 

From  these  skeleton  entries — a  journal  is  only  a  skeleton — 
your  Honors  will  perceive  that  different  parts  of  what  now 
stands  as  a  whole — even  parts  of  the  clauses  supposed  to  relate 
exclusively  or  especially  to  freedmen  and  their  rights — were 
separately  and  independently  conceived,  separately  acted  on, 
perfected,  and  reported,  not  in  the  order  in  which  they  are  now 
collated,  and  not  with  a  single  inspiration  or  design.  You 
will  perceive  also  that  before  what  now  constitutes  part  of 
the  first  section  was  perfected,  or  even  considered,  the  com 
mittee  had  reported,  and  lost  all  jurisdiction  and  power  over, 
the  portion  of  the  amendment  which  did  in  truth  chiefly  relate 
to  the  freedmen  of  the  South.  The  subject  of  suffrage,  the 
ballot,  and  representation  in  Congress,  was  disposed  of  before 
the  committee  reached  the  language  on  which  to-day's  argu 
ment  proceeds. 

Conkling  then  quoted  at  length  from  the  journal  in  order 

1  Conkling  had  good  reason  to  omit  the  names ;  he  indeed  might  have 
been  embarrassed  by  them,  for  he  himself  voted  consistently  against 
the  civil  rights  amendment.  See  infra,  ch.  iii. 


32  INTRODUCTION  [32 

to  show  that  the  civil  rights  section  of  the  fourteenth 
amendment  as  originally  considered  in  committee  consti 
tuted  by  itself  a  whole,  separate  amendment  .to  the  Constitu 
tion.  Moreover,  he  asked  why,  if  the  end  to  which  the 
mind  of  the  author,  Bingham,  was  reaching  out  was  simply 
to  bespeak  protection  for  the  black  man  of  the  South,  he 
should  choose  such  general  and  sweeping  words,  when  he 
could  so  easily  and  briefly  have  expressed  exactly  the  idea 
on  which  his  thoughts  were  bent.  These  words  were  taken 
almost  bodily  from  the  Constitution  as  follows : 

The  Congress  shall  have  power  to  make  all  laws  which  shall 
be  necessary  and  proper  to  secure  to  the  citizens  of  each  state 
all  privileges  and  immunities  of  citizens  in  the  several  states; 
(Art.  4,  Sec.  2)  and  to  all  persons  in  the  several  states  equal 
protection  in  the  rights  of  life,  liberty,  and  property  (5th 
amendment).1 

Conkling  then  continued : 

Now,  may  it  please  your  Honors,  obviously  the  object  of  the 
draughtsman  of  this  last  referred  to  amendment  in  making  re 
ference  on  the  face  of  his  resolution  to  article  4,  section  2, 
and  to  the  fifth  amendment,  was  to  remind  the  committee  of 
the  established  meaning  and  universally  accepted  import  and 
force  of  the  words  which  there  stood. 

At  the  time  the  fourteenth  amendment  was  ratified,  indivi 
duals  and  joint  stock  companies  were  appealing  for  congres 
sional  and  administrative  protection  against  the  invidious  and 
discriminating  state  and  local  taxes.  One  instance  was  that 
of  an  express  company,  whose  stock  was  owned  largely  by 
citizens  of  the  state  of  New  York,  who  came  with  petitions 
and  bills  seeking  acts  of  Congress  to  aid  them  in  resisting  what 
they  deemed  oppressive  taxation  in  two  states,  and  oppressive 
and  ruinous  rules  of  damages  applied  under  state  laws.  That 

1  See  infra,  p.  61. 


33]  INTRODUCTION  33 

complaints  of  oppression  in  respect  of  property  and  other 
rights,  made  by  citizens  of  northern  states  who  took  up  resi 
dence  in  the  South,  were  rife,  in  and  out  of  Congress,  none  of 
us  can  forget ;  that  complaints  of  oppression,  in  various  forms, 
of  white  men  in  the  South, — of  "  Union  men,"  were  heard  on 
every  side,  I  need  not  remind  the  Court. 

Conkling,  after  arguing  further  that  the  fourteenth 
amendment  was  intended  as  much  for  the  protection  of 
white  men  as  negroes  against  discriminating  state  legisla 
tion,  then  undertook  to  prove  to  the  Court  that  the  amend-* 
ment  was  designed  to  operate  upon  associations  of  indi 
viduals  (i.  e.,  corporations)  as  well  as  upon  individuals 
singly. 

The  defendant  here,  in  respect  of  its  property  is  in  law 
and  in  fact  but  the  business  style  of  individual  owners  united 
and  co-operating  in  a  common  undertaking,  and  who,  as  mere 
method  and  convenience,  conduct  business  through  corporate 
agency.  Be  it  a  church,  a  hospital,  a  library,  a  hotel,  a  mill, 
a  factory,  a  mine,  or  a  railroad,  the  property  and  assets  of  a 
corporation  belong  to  no  one  save  the  creditors  and  the 
shareholders. 

Suppose,  in  South  Carolina,  a  society  of  colored  men  should 
incorporate  themselves  and  acquire  a  church  or  a  college,  and 
this  property  should,  by  statute  be  confiscated,  either  by  dis 
criminating  taxation  or  otherwise,  can  it  be  supposed  that  the 
fact  of  their  having  formed  a  corporation,  rather  than  a  joint- 
stock  company  or  a  partnership,  would  exclude  them  from  the 
protection  of  the  fourteenth  amendment?  Could  such  a 
cramped  construction  be  given  to  the  amendment,  even  if  the 
rule  of  its  construction  restricted  its  operation  to  only  the 
cases  known  or  foreseen  by  those  who  chose  the  language? 

I  have  put  the  case  of  colored  men.  Let  me  transpose  the 
illustration.  In  several  states,  colored  men  outnumber  white 
men.  Suppose  in  one  of  these  states  laws  should  be  con 
trived  by  the  colored  majority,  or  a  constitution  set  up,  under 


34  INTRODUCTION  [34 

which  the  property  of  white  men  should  be  confiscated,  surely 
the  Court  would  not  say  the  Constitution  is  dumb,  but  would 
speak,  if  only  the  parties  to  the  record  were  reversed. 

I  have  sought  to  convince  your  Honors  that  the  men  who 
framed,  the  Congress  which  proposed,  and  the  people  who 
through  their  legislatures  ratified  the  fourteenth  amendment, 
must  have  known  the  meaning  and  force  of  the  term  "persons." 

Those  who  devised  the  fourteenth  amendment  wrought  in 
grave  sincerity.  They  may  have  builded  better  than  they 
knew. 

They  vitalized  and  energized  a  principle  as  old  and  as 
everlasting  as  human  rights.  To  some  of  them,  the  sunset  of 
life  may  have  given  mystical  lore. 

They  builded,  not  for  a  day,  but  for  all  time ;  not  for  a  few, 
or  for  a  race,  but  for  man.  They  planted  in  the  Constitution 
a  monumental  truth,  to  stand  foursquare  whatever  wind  might 
blow.  That  truth  is  but  the  golden  rule,  so  entrenched  as  to 
curb  the  many  who  would  do  to  the  few  as  they  would  not 
have  the  few  do  to  them. 

Though  the  points  argued  by  Conkling  were  not  decided 
by  the  Court  in  the  San  Mateo  case,  yet  his  speech  in  that 
case  marks  distinctly  the  point  at  which  the  Supreme  Court 
ceased  to  interpret  section  i  of  the  fourteenth  amendment! 
as  having  reference  almost  wholly  to  negroes,  and  began  tq 
regard  it  as  having  a  much  broader  application.  In  order 
to  show  that  Conkling's  argument  had  a  most  profound 
effect  upon  the  minds  of  the  judges,  the  three  following  in 
cidents  are  related. 

Justice  Miller,  who  had  delivered  the  opinion  of  the  Court 
in  the  Slaughter-House  cases,  was  still  on  the  bench  when} 
the  San  Mateo  case  was  argued.  He  listened  to  Conkling's 
refutation  of  his  own  opinion,  and  when  another  of  the  de 
fendant's  counsel  began  to  argue  the  same  points  which 
Conkling  had  made,  Miller  interrupted  him  and  said :  "  I 


INTRODUCTION  35 

have  never  heard  it  said  in  this  Court  or  by  any  judge  of  it 
that  these  articles  [i.  e.,  the  fourteenth  amendment]  were 
supposed  to  be  limited  to  the  negro  race.  The  purport  of 
the  general  discussion  in  the  Slaughter-House  cases  on  this 
subject  was  nothing  more  than  the  common  declaration 
that  when  you  come  to  construe  any  act  of  Congress,  you 
must  consider  the  evil  which  was  to  be  remedied  in  order  to 
understand  fairly  what  the  purpose  of  the  remedial  act 
was."  To  this  statement,  Conkling's  associate  replied,  "  D 
understand,  then,  that  so  far  as  your  Honor  is  concerned, 
the  color  line  has  disappeared  from  American  jurispru^ 
dence."  To  this,  Miller  did  not  dissent,  from  which  we 
may  fairly  conclude  that  he  was  ready  to  abandon  what 
had  been  generally  regarded  as  a  very  narrow  interpreta 
tion  of  the  civil  rights  clause  of  the  fourteenth  amendment. 

In  the  spring  of  1883,  Justice  Field  was  sitting  in  the  cir^ 
cuit  court  in  California,  when  he  was  called  upon  to  decide 
the  Santa  Clara  case,  which  involved  the  same  general  prin 
ciples  as  the  San  Mateo  case.  His  decision  is  remark 
able  in  that  he  adopted  the  same  attitude  toward  the  purport! 
of  the  civil  rights  section  of  the  fourteenth  amendment 
which  Conkling  had  enunciated  in  his  San  Mateo  speech. 
In  fact  the  justice  quoted  several  passages  from  that  speech, 
a  notable  one  being  the  concluding  paragraph  of  it  in  which- 
Conkling  laid  down  what  he  considered  the  true  method  of 
interpretation. 

But  an  appeal  from  Justice  Field's  decision  of  the  Santa 
Clara  case  in  the  California  circuit,  was  taken  to  the  Su 
preme  Court.  As  has  been  seen,  the  case  was  argued  be 
fore  that  tribunal  in  1886.  Again  the  Court  refused  to  de 
cide  the  question  raised  under  the  fourteenth  amendment,! 
but  in  his  dictum  quoted  above,  the  Chief  Justice  committed 
himself  and  the  Court  to  the  doctrine  that  the  "  equal  prcn 
tection  of  the  laws  "  clause  should  be  interpreted  as  extend- 


36  INTRODUCTION  [35 

ing  to  persons  other  than  members  of  the  colored  race,  and 
that  "  persons  "  in  this  sense  included  corporations.  The 
dictum  as  to  both  these  matters  followed  Conkling's  view, 
and  the  door  was  opened  for  organized  capital  to  contest, 
often-times  successfully,  before  the  highest  Court  in  the 
land,  whatever  laws  of  the  states  it  considered  disadvan 
tageous  to  its  own  interests.  And  what  gave  greatest  force 
to  Conkling's  argument  was  his  ingenious  use  of  the  journal 
of  the  joint  committee  on  reconstruction. 


THE   JOURNAL    OF  THE    JOINT    COMMITTEE 

OF  FIFTEEN  ON  RECONSTRUCTION. 

39TH  CONGRESS. 

1865-1867. 


IN  THE  HOUSE  OF  REPRESENTATIVES, 

December  4,  1865. 
On  motion  of  Mr.  Stevens : 

Be  it  resolved,  by  the  Senate  and  House  of  Represen 
tatives  in  Congress  assembled :  That  a  joint  committee 
of  fifteen  members  shall  be  appointed,  nine  of  whom 
shall  be  members  of  the  House,  and  six  members  of  the 
Senate,  who  shall  inquire  into  the  condition  of  the 
States  which  formed  the  so-called  Confederate  States  of 
America,  and  report  whether  they,  or  any  of  them,  are 
entitled  to  be  represented  in  either  House  of  Congress, 
with  leave  to  report  at  any  time,  by  bill  or  otherwise ; 
and  until  such  report  shall  have  been  made,  and  finally 
acted  on  by  Congress,  no  member  shall  be  received  into 
either  House  from  any  of  the  so-called  Confederate 
States;  and  all  papers  relating  to  the  representation  of 
said  States  shall  be  referred  to  the  said  Committee 
without  debate. 

Attest, 

EDW'D  MCPHERSON,  Clerk. 
37]  37 


3g  THE  JOURNAL  [38 

December  12,  1865. 

Amended  in  the  Senate,  on  motion  of  Mr.  Anthony,  so 
as  to  read, 

Resolved  by  the  House  of  Representatives,  (the  Sen 
ate  concurring)  That  a  joint  committee  of  fifteen  mem 
bers  shall  be  appointed,  nine  of  whom  shall  be  members 
of  the  House,  and  six  members  of  the  Senate,  who  shall 
inquire  into  the  condition  of  the  States  which  formed 
the  so-called  Confederate  States  of  America,  and  report 
whether  they,  or  any  of  them,  are  entitled  to  be  repre 
sented  in  either  House  of  Congress,  with  leave  to  report 
at  any  time,  by  bill  or  otherwise. 

Attest, 

J.  W.  FORNEY,  Secretary. 

Dec.  13,  1865. 

In  the  House  of  Representatives,  on  motion  of  Mr. 
Stevens,  the  amendments  of  the  Senate  were  concurred 
in. 

Attest, 

EDW'D  McPnERSON,  Clerk. 

Members  on  the  part  of  the  Senate. 

Mr.  William  P.  Fessenden  of  Maine. 

"     James  W.  Grimes,  "  Iowa. 

"     Ira  Harris,  "  New  York. 

"     Jacob  M.  Howard,  "  Michigan. 

Reverdy  Johnson,  "  Maryland, 

and   "     George  H.  Williams,  "  Oregon. 


THE  JOURNAL  39 

Members  on  the  part  of  the  House  of  Rep's. 

Mr.  Thaddeus  Stevens,  of  Penn'a. 

"     Elihu  B.  Washburne,  "  Illinois. 

"     Justin  S.  Morrill,  "  Vermont. 

"     Henry  Grider,  "  Kentucky. 

"     John  A.  Bingham,  "  Ohio. 

"     Roscoe  Conkling,  "  New  York. 

"     George  S.  Boutwell,  "  Massachusetts. 

"     Henry  T.  Blow  "  Missouri, 

and    "     Andrew  J.  Rogers,  "  New  Jersey. 

Saturday,  January  6th,  1866. 

The  Joint  Committee  on  Reconstruction  met  (in  the  room 
of  the  Senate  Committee  on  the  Pacific  Railroad)  pursuant 
to  the  call  of  Mr.  Fessenden,  its  chairman. 

Present — The  Chairman,  Messrs.  Grimes,  Harris,  How 
ard,  Johnson  and  Williams,  of  the  Senate,  and  Messrs. 
Stevens,  Washburne,  Morrill,  Conkling,  Boutwell  and  Blow, 
of  the  House. 

On  motion, 

Ordered,  That  Mr.  Wm.  Blair  Lord  (of  New  York  City) 
be  appointed  clerk  and  stenographer  of  this  Committee ;  and 
that  the  Chairman  be  instructed  to  obtain  from  the  Senate 
the  necessary  authority  for  his  employment. 

On  motion  of  Mr.  Stevens: 

Ordered,  That  a  sub-committee,  to  consist  of  three  mem 
bers,  be  appointed  to  wait  on  the  President  and  request  him 
to  defer  all  further  executive  action  in  regard  to  reconstruc- 
iton  until  this  Committee  shall  have  taken  action  on  that 
subject. 


40  THE  JOURNAL  [40 

On  motion, 

Ordered,  That  the  Chairman,  and  Messrs.  Johnson  and 
Washburne  constitute  said  sub-committee. 
Adjourned  to  ten  A.  M.  on  Tuesday  next. 

Tuesday,  January  9,  1866. 

The  Committee  met  pursuant  to  adjournment:  all  the 
members  present. 

The  Chairman  submitted  the  following  resolution,  which 
was  unanimously  agreed  to  : 

Resolved,  That  all  the  resolutions  submitted  to  or  adopted 
by  this  Committee,  the  views  expressed  in  Committee  by  its 
different  members,  all  votes  taken  and  all  other  proceedings 
in  Committee  of  whatever  nature,  be  regarded  by  the  mem 
bers  of  the  Committee  and  the  clerk  as  of  a  strictly  confiden 
tial  character,  until  otherwise  ordered. 

The  Chairman,  from  the  sub-committee  appointed  at  the 
last  meeting  of  the  Committee,  to  wait  on  the  President,  re 
ported  orally, 

That  the  Committee  had  waited  on  the  President  and  ex 
pressed  to  him  the  views  of  the  Committee  as  set  forth  in 
the  resolution  appointing  the  sub-committee ;  that  the  Com 
mittee  desired  to  avoid  all  possible  collision  or  misconstruc 
tion  between  the  Executive  and  Congress  in  regard  to  the 
relative  positions  of  Congress  and  the  President,  and  that 
they  thought  it  exceedingly  desirable  that,  while  this  sub 
ject  was  under  consideration  by  the  Joint  Committee,  no 
further  action  in  regard  to  reconstruction  should  be  taken 
by  the  President,  unless  it  should  become  imperatively  nec 
essary,  and  that  they  thought  mutual  respect  would  seem 


4I]  THE  JOURNAL  4! 

to  require  mutual  forbearance  on  the  part  of  the  Executive 
and  of  Congress.  To  which  the  President  replied  substan 
tially  that  while  he  considered  it  desirable  that  this  matter 
of  reconstruction  should  be  advanced  as  rapidly  as  might  be 
consistent  with  the  public  interest,  still  he  desired  to  secure 
harmony  of  action  between  Congress  and  the  Executive, 
and  it  was  not  his  intention  to  do  more  than  had  been  done 
for  the  present. 

Mr.  Stevens  submitted  a  joint  resolution,  upon  which  he 
asked  immediate  action  by  the  Committee,  proposing  to 
submit  for  ratification  to  the  several  States  the  following 
amendment  to  the  Constitution  of  the  United  States : 

Representatives  shall  be  apportioned  among  the  several 
States,  which  may  be  included  within  this  Union,  according 
to  the  number  of  their  respective  legal  voters;  and  for  this 
purpose  none  shall  be  considered  as  legal  voters  who  are  not 
either  natural  born  or  naturalized  citizens  of  the  United 
States,  of  the  age  of  twenty-one  years. 

Congress  shall  provide  for  ascertaining  the  number  of 
said  voters.  A  true  census  of  the  legal  voters  shall  be  taken 
at  the  same  time  with  the  regular  census. 

After  discussion. 

Mr.  Conkling  moved  to  amend  by  inserting  the  word 
"  male  "  between  the  word  "  naturalized  "  and  the  word 
"  citizens." 

The  amendment  was  adopted. 

Mr.  Morrill  moved  to  further  amend  by  inserting  after 
the  words  "  o-f  the  age  of  twenty-one  years  "  the  words 
"  and  who  can  read  and  write." 

The  amendment  was  not  agreed  to. 


42  THE  JOURNAL  [42 

The  further  consideration  of  the  subject  was  postponed 
till  this  evening. 

The  Chairman  submitted  the  following : 

Resolved,  That,  in  the  opinion  of  this  Committee,  the  in 
surgent  States  cannot,  with  safety  to  the  rights  of  all  the 
people  of  the  United  States,  be  allowed  to  participate  in  the 
Government  until  the  basis  of  representation  shall  have 
been  modified,  and  the  rights  of  all  persons  amply  secured, 
either  by  new  provisions,  or  the  necessary  changes  of  exist 
ing  provisions,  in  the  Constitution  of  the  United  States,  or 
otherwise. 

On  motion  of  Mr.  Stevens,  the  further  consideration  of 
the  resolution  was  postponed  for  the  present. 

On  motion  of  Mr.  Stevens,  the  Committee  took  a  recess 
till  7^  o'clock  this  evening. 

The  Committee  reassembled  at  J}/2  o'clock  P.  M. — ab 
sent  Mr.  Blow. 

The  consideration  of  the  joint  resolution  submitted  by 
Mr.  Stevens  was  resumed. 

Mr.  Williams  moved  to  further  amend  the  same  by  strik 
ing  out  the  words,  "  and  for  this  purpose  none  shall  be  con 
sidered  as  legal  voters  who  are  not  either  natural-born  or 
naturalized  male  citizens  of  the  United  States,  of  the  age 
of  twenty-one  years." 

After  discussion. 

Mr.  Johnson  moved  to  postpone  the  further  considera 
tion  of  the  joint  resolution  until  the  next  meeting  of  the 
Committee. 

The  motion  was  agreed  to. 


THE  JOURNAL  43 

Mr.  Stevens  and  Mr.  Howard  submitted  propositions  for 
the  future  consideration  of  the  Committee. 

Ordered,  That  the  same  be  placed  on  file  for  future  con 
sideration. 

On  motion  of  Mr.  Harris,  the  Committee  adjourned  till 
Friday  next  at  iol/2  o'clock  A.  M.  ^ 

Friday,  January  12,  1866. 

The  Committee  met  pursuant  to  adjournment;  absent 
Mr.  Rogers. 

The  consideration  of  the  joint  resolution  submitted  by 
Mr.  Stevens  was  resumed. 

The  pending  question  was  upon  the  amendment  proposed 
by  Mr.  Williams. 

Mr.  Williams  withdrew  his  amendment. 

Mr.  Morrill  moved  the  following  as  a  substitute  for  the 
original  proposition: 

Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  States,  which  may  be  included  within 
this  Union,  according  to  their  respective  numbers  of  .per 
sons,  deducting  therefrom  all  of  any  race  or  color,  whose 
members  or  any  of  them  are  denied  any  of  the  civil  or 
political  rights  or  privileges. 

Mr.  Williams  gave  notice  that  at  the  proper  time  he 
should  move  the  following  substitute : 

Representatives  and  direct  taxes  shall  be  apportioned 

among  the  several  States  of  the  Union  according  to  their 

respective  numbers,  excluding  negroes,   Indians,   Chinese, 

and  all  persons,  not  white,  who  are  not  allowed  the  elective 


44  THE  JOURNAL  [44 

franchise  by  the  Constitutions  of  the  States  in  which  'they 
respectively  reside. 

Mr.  Conkling  gave  a  similar  notice  in  regard  to  the  fol 
lowing  substitute : 

Representatives  and  direct  taxes  shall  be  apportioned 
\  among  the  several  States,  which  may  be  included  within 
this  Union,  according  to  their  respective  numbers,  counting 
J  the  whole  number  of  citizens  of  the  United  States ;  provided 

that  whenever  in  any  State  civil  or  political  rights  or  privi 
leges  shall  be  denied  or  abridged  on  account  of  race  or  color, 
all  persons  of  such  race  or  color  shall  be  excluded  from  the 
basis  of  representation  or  taxation. 

Mr.  Boutweil  gave  a  similar  notice  in  regard  to  the  fol 
lowing  substitute : 

Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  States,  which  may  be  included  within  this 
Union,  according  to  the  respective  number  of  citizens  of 
the  United  States  in  each  State;  and  no  State  shall  make 
any  distinction  in  'the  exercise  of  the  elective  franchise  on 
account  of  race  or  color. 

After  discussion. 

Mr.  Bingham,  in  order  to  test  the  sense  of  the  COITH 
mittee,  submitted  the  following  resolution : 

Resolved,  That,  in  the  opinion  of  this  Committee,  the 
amendment  to  the  Constitution  of  the  United  States  sub 
mitted  by  Mr.  Stevens,  ought  to  be  amended  or  modified. 

Mr.  Johnson  moved  as  a  substitute  for  the  resolution  of 
Mr.  Bingham,  the  following: 

Resolved,  That,  in  the  opinion  of  this  Committee,  the  ap- 


45]  THE  JOURNAL  45 

portionment  of  representation  in  Congress,  as  now  pro 
vided  by  the  Constitution,  ought  to  be  changed. 

Mr.  Bingham  accepted  the  substitute. 

The  question  was  then  taken,  by  yeas  and  nays,  on  the 
resolution  as  modified,  and  it  was  decided  in  the  affirmative, 
yeas  13,  nay  i,  not  voting  i,  as  follows: 

Yeas — The  Chairman,  Messrs.  Grimes,  Harris,  Howard, 
Johnson,  Williams,  Stevens,  Washburne,  Morrill,  Bingham, 
Conkling,  Boutwell  and  Blow — 13. 

Nay — Mr.  Grider — i. 

Not  voting — Mr.  Rogers — i. 

The  resolution  as  modified  was  accordingly  adopted. 

Mr.  Johnson  submitted  the  following  resolution : 

Resolved,  That,  in  the  opinion  of  this  Committee,  repre 
sentatives  should  be  apportioned  among  the  several  States 
according  to  their  respective  numbers  of  legal  voters. 

The  question  was  taken,  by  yeas  and  nays,  and  it  was  de 
cided  in  the  negative,  yeas  6,  nays  8,  absent  and  not  voting 
i,  as  follows: 

Yeas — Messrs.  Grimes,  Johnson,  Stevens,  Washburne, 
Bingham  and  Blow — 6. 

Nays — The  Chairman,  Messrs.  Harris,  Howard,  Wil 
liams,  Morrill,  Grider,  Conkling  and  Boutwell — 8. 

Absent  and  not  voting,  Mr.  Rogers — i. 

So  the  resolution  was  not  agreed  to. 

Mr.  Morrill  submitted  the  following: 

Ordered,  That  a  sub-committee,  to  consist  of  five  mem 
bers,  including  the  Chairman  of  the  Committee  on  the  part 
of  the  Senate,  and  the  Chairman  of  the  Committee  on  the 


46  THE  JOURNAL  [46 

part  of  the  House,  (Messrs.  Fessenden  and  Stevens)  be  ap 
pointed,  to  which  shall  be  referred  the  various  propositions 
submitted  by  members  of  this  Committee  in  relation  to  ap 
portionment  of  representatives  in  Congress,  with  instruc 
tions  to  prepare  and  report  to  this  Committee  a  proposition 
upon  that  subject. 

The  motion  was  agreed  to. 

Mr.  Bingharn  submitted  the  following  proposed  amend 
ment  of  the  Constitution  of  the  United  States,  and  moved 
that  the  same  be  referred  to  the  sub-committee  just  author 
ized: 

The  Congress  shall  have  power  to  make  all  laws  neces- 

ry  and  proper  to  secure  to  all  persons  in  every  state  within 
this  Union  equal  protection  in  their  rights  of  life,  liberty 
and  property. 

The  motion  was  agreed  to. 

Mr.  Stevens  submitted  the  following  proposed  amend 
ment  of  the  Constitution,  and  moved  that  the  same  be  re 
ferred  to  the  sub-committee  just  authorized: 
/    All  laws,  state  or  national,  shall  operate  impartially  and 
!  equally  on  all  persons  without  regard  to  race  or  color. 

The  motion  was  agreed  to. 

On  motion  of  Mr.  Stevens. 

Ordered,  That  the  remaining  members  of  the  sub-com 
mittee,  authorized  at  this  meeting,  be  appointed  by  the 
Chairman  of  the  Joint  Committee. 

The  motion  was  agreed  to. 

The  Chairman  announced  the  following  as  members  of 
the  sub-committee : 


47]  THE  JOURNAL  47 

Messrs.  Fessenden  and  Stevens  (named  in  the  order  of 
the  Joint  Committee)  and  Messrs.  Howard,  Conkling  and 
Bingham. 

On  motion  of  Mr.  Stevens: 

Ordered,  That  the  Chairman  be  instructed  to  introduce 
into  the  Senate  a  concurrent  resolution  authorizing  the  Joint 
Committee  to  send  for  persons  and  papers. 

On  motion  of  Mr.  Bingham: 

Ordered,  That  sub-committees,  each  composed  of  two 
members,  be  appointed  to  examine  and  report  upon  the 
present  condition  of  the  States  composing  the  late  so-called 
Confederate  States  of  America,  and  not  now  represented  in 
Congress;  what  has  been  their  action  in  relation  to  any 
amendments  of  the  Federal  or  State  Constitutions;  what 
may  be  the  present  legal  position  of  the  freedmen  in  the  re 
spective  States;  in  what  manner  the  so-called  ordinances  of 
secession  have  been  treated;  whether  the  validity  of  debts 
contracted  for  the  support  of  the  rebellion  is  acknowledged; 
and  generally  as  to  all  evidence,  documentary  or  otherwise, 
of  the  present  loyalty  or  disloyalty  upon  the  part  of  the  peo 
ple  or  governments  of  said  states.  That  is  to  say,  com 
mittees  embracing 

ist.  Tennessee. 

2nd.  Virginia,  North  Carolina  and  South  Carolina. 

3rd.  Georgia,  Alabama,  Mississippi,  and  Arkansas,  and 

4th.  Louisiana,  Florida  and  Texas. 

On  motion  of  Mr.  Hoivard: 

Ordered,  That  the  sub-committees  above  authorized  be 
appointed  by  the  Chairman  of  the  Joint  Committee. 


48  THE  JOURNAL  [4g 

On  motion  of  Mr,  Harris: 

The  Committee  adjourned  to  n  A.  M.  on  Monday  next. 

Monday,  January  15,  1866. 

The  Committee  met  pursuant  to  adjournment;  absent, 
Messrs.  Johnson  and  Blow. 

On  motion  of  Mr.  Morrill: 

Ordered,  That  the  various  sub-committees  authorized  on 
motion  of  Mr.  Bingham,  at  the  last  meeting  of  the  Com 
mittee,  shall  consist  of  three  members  each  instead  of  two> 
members. 

The  Chairman  announced  the  following  as  the  members 
of  the  sub-committees  ordered  at  the  last  meeting : 

No.   i.  Messrs.  Grimes,  Bingham  and  Grider. 

No.  2.  Howard,  Conkling  and  Blow. 

No.  3.  Harris,  Boutwell  and  Morrill. 

No.  4.  Williams,  Washburne  and  Rogers. 

Mr.  Stevens  submitted  the  following  resolution  of  the 
House  of  Representatives : 

Ordered,  That  the  same  be  spread  upon  the  Journal. 

"  On  motion  of  Mr.  James  F.  Wilson: 

Resolved,  That  all  papers  which  may  be  offered  relative 
to  the  representation  of  the  late  so-called  Confederate  States 
of  America,  or  either  of  them,  shall  be  referred  to  the  Joint 
Committee  of  fifteen  without  debate;  and  no  members  shall 
be  admitted  from  either  of  said  so-called  States  until  Con 
gress  shall  believe  such  States,  or  either  of  them,  entitled  to 
representation." 

Adjourned  to  meet  on  call  of  the  Chairman. 


49]  THE  JOURNAL  49 

Saturday,  January  20,  1866. 

The  Committee  met  pursuant  to  call  of  its  Chairman ;  ab 
sent,  Mr.  Johnson. 

The  Chairman  laid  before  the  Committee  the  following 
papers,  which  were  ordered  to  be  entered  upon  the  Journal 
of  the  Committee: 

IN  THE  SENATE  OF  THE  UNITED  STATES, 

January  8,  1866. 
On  motion  of  Mr.  Fessenden: 

Ordered,  That  the  Joint  Committee  to  inquire  into  the 
condition  of  the  States  which  formed  the  so-called  Confed 
erate  States  of  America,  be  authorized  to  employ  a  steno 
graphic  clerk. 

IN  THE  SENATE  OF  THE  UNITED  STATES, 

January  12,  1866. 
On  motion  of  Mr.  Fessenden: 

Resolved,  by  the  Senate,  the  House  of  Representatives 
concurring,  that  the  Joint  Committee  appointed  to  enquire 
into  the  condition  of  the  States  which  formed  the  so-called 
Confederate  States  be  authorized  to  send  for  persons  and 
papers. 

Attest, 

J.  W.  FORNEY,  Secretary. 

IN  THE  HOUSE  OF  REPRESENTATIVES, 

January  16,  1866. 
On  motion  of  Mr.  Stevens: 

Resolved,  That  the  House  concur  in  the  foregoing  reso 
lution  of  the  Senate. 

Attest, 

EDW'D  MCPHERSON,  Clerk. 


50  THE  JOURNAL  [50 

The  Chairman,  from  the  sub-committee  on  the  basis  of 
representation,  reported  that  the  sub-committee  had  directed 
him  to  report  the  following  for  the  action  of  the  Joint  Com 
mittee;  the  first  two  as  alternative  propositions,  one  of 
which,  with  the  third  proposition,  to  be  recommended  to 
Congress  for  adoption : 

"  Resolved,  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
two-thirds  of  both  Houses  concurring,  that  the  following 
Articles  be  proposed  to  the  Legislatures  of  the  several 
States,  as  amendments  to  the  Constitution  of  the  United 
States,  wrhich,  when  they,  or  either  of  them,  shall  be  rati 
fied  by  three-fourths  of  the  said  Legislatures,  shall  be  valid 
as  part  of  said  Constitution;  viz : 

Article  A. 

Representatives   and   direct   taxes   shall   be   apportioned 

among  the  several  States  within  this  Union,  according  to 

the  respective  numbers  of  citizens  of  the  United  States  in 

each  State;  and  all  provisions  in  the  Constitution  or  laws  of 

I  any  State,  whereby  any  distinction  is  made  in  political  or 

civil  rights  or  privileges,  on  account  of  race,  creed  or  color, 

\  shall  be  inoperative  and  void. 

Or  the  following : 

Article  B. 

Representatives   and   direct  taxes   shall   be  apportioned 

among  the  several  States  which  may  be  included  within  this 

*/,/ Union,  according  to  their  respective  numbers,  counting  the 

whole  number  of  citizens  of  the  United  States  in  each  State ; 

provided  that,  whenever  the  elective  franchise  shall  be  de- 


£!]  THE  JOURNAL  51 

nied  or  abridged  in  any  State  on  account  of  race,  creed  or 
color,  all  persons  of  such  race,  creed  or  color,  shall  be  ex- 
,  eluded  from  the  basis  of  representation. 

Article  C. 

Congress  shall  have  power  to  make  all  laws  necessary  and 

proper  to  secure  to  all  citizens  of  the  United  States,  in  every 

j  State,  the  same  political  rights  and  privileges ;  and  to  all 

persons  in  every  State  equal  protection  in  the  enjoyment  of 

life,  liberty  and  property." 

The  Joint  Committee  proceeded  to  consider  the  report  of1 
the  sub-committee. 

Mr.  Stevens  moved  that  the  last  article  be  separated  from 
^whichever  of  the  other  two  should  be  adopted  by  the  Com 
mittee,  and  be  considered  by  itself. 

The  question  was  taken  by  yeas  and  nays,  and  decided  in 
the  affirmative,  yeas  10,  nays  4;  absent  and  not  voting  i,  as 
follows : 

Yeas — Messrs.  Grimes,  Williams,  Stevens,  Washburne, 
Morrill,  Bingham,  Conkling,  Boutwell,  Blow  and  Rogers. 
— 10. 

Nays — The  Chairman,  Messrs.  Harris,  Howard  and 
Grider — 4. 

Absent  and  not  voting — Mr.  Johnson — i. 

So  the  motion  was  agreed  to. 

Mr.  Stevens  moved  that  the  Committee  take  the  second 
/named  of  the  alternative  proposed  articles  as  the  basis  of 
their  action. 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  affirmative,  yeas  n,  nays  3,  absent  and  not 
voting  i,  as  follows: 


52  THE  JOURNAL  [52 

Yeas — Messrs.  Grimes,  Harris,  Williams,  Stevens,  Wash- 
burne,  Morrill,  Bingham,  Conkling,  Boutwell,  Blow  and 
Rogers — n. 

Nays — The  Chairman,  Messrs.  Howard  and  Grider — 3. 

Absent  and  not  voting — Mr.  Johnson — i. 

So  the  motion  was  agreed  to. 

Mr.  Stevens  moved  to  amend  the  proposed  article  by  add 
ing  the  following  : 

"  And  whenever  the  words  '  citizen  of  the  United  States  ' 
are  used  in  the  Constitution  of  the  United  States,  they  shall 
be  construed  to  mean  all  persons  born  in  the  United  States, 
or  naturalized,  excepting  Indians." 

Pending  the  consideration  of  which 

Mr.  Conkling  moved  to  amend  the  proposed  article  by 
striking  out  the  words  "  citizens  of  the  United  States  in 
v/each  State,"  and  inserting  in  lieu  thereof  the  words,  "  per 
sons  in  each  State,  excluding  Indians  not  taxed." 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  affirmative,  yeas  1 1,  nays  3,  absent  and  not  vot 
ing  i,  as  follows: 

Yeas — Messrs.  Grimes,  Harris,  Howard,  Williams, 
Washburne,  Morrill,  Grider,  Conkling,  Boutwell,  Blow  and 
Rogers — n. 

Nays — The  Chairman  and  Messrs.  Stevens  and  Bingham 

— 3- 

Absent  and  not  voting — Mr.  Johnson — i. 

So  the  amendment  was  adopted. 

Mr.  Morrill  moved  to  further  amend  by  striking  out  the 
word  "  creed  "  wherever  it  occurred  in  the  proposed  article. 


53]  THE  JOURNAL  53 

The  amendment  was  adopted. 

Mr.  Stevens  withdrew  his  amendment. 

The  question  was  upon  agreeing  to  the  proposed  article 
as  amended,  which  was  as  follows : 

"  Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  within  this 
Union,  according  to  their  respective  numbers,  counting  the 
whole  number  of  persons  in  each  State,  excluding  Indians 
i  not  taxed ;  provided  that  whenever  the  elective  franchise 
shall  be  denied  or  abridged  in  any  State  on  account  of  race 
or  color,  all  persons  of  such  race  or  color  shall  be  excluded 
from  the  basis  of  representation." 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  affirmative,  yeas  13,  nay  i,  absent  and  not  vot 
ing  i,  as  follows: 

Yeas — The  Chairman,  Messrs.  Grimes,  Harris,  Howard, 
Williams,  Stevens,  Washburne,  Morrill,  Grider,  Bingham, 
Conkling,  Boutwell  and  Blow — 13. 

Nay — Mr.  Rogers — i. 

Absent  and  not  voting — Mr.  Johnson — i. 

So  the  proposed  article  as  amended  was  agreed  to. 

Pending  the  call  of  the  yeas  and  nays 

Messrs.  Howard  and  Grider  each  said,  that  although  they 
voted  in  the  affirmative,  they  desired  to  be  understood  as 
retaining  their  right  to  support,  in  their  respective  Houses, 
some  proposition  more  in  accordance  with  their  views, 
should  they  deem  it  advisable  to  do  so. 

On  motion  of  Mr.  Bingham  it  was 

Ordered,  That  the  Chairman  of  the  Senate  portion  of  the 


54  THE  JOURNAL  [54 

Joint  Committee  (Mr.  Fessenden),  and  the  Chairman  of 
the  House  portion  of  the  Joint  Committee  (Mr.  Stevens), 
be  instructed  to  report  as  early  as  practicable  to  their  re 
spective  Houses,  the  proposed  amendment  to  the  Constitu 
tion  of  the  United  States,  this  day  agreed  upon  by  the  Joint 
Committee,  and  recommend  its  adoption  by  the  same. 

Mr.  Rogers  asked  and  obtained  leave  to  submit  to  the 
House  of  Representatives  a  report  setting  forth  the  views 
of  the  minority  of  the  Joint  Committee  upon  the  proposed 
amendment. 

Adjourned  to  meet  on  call  of  the  Chairman. 

Wednesday,  January  24,  1866. 

The  Committee  met  pursuant  to  call  of  its  Chairman ;  ab 
sent  Messrs.  Harris  and  Johnson. 

The  Chairman  laid  before  the  Committee  the  following 
resolution  of  the  Senate  which  was  ordered  to  be  entered 
upon  the  Journal : 

"  January  22,  1866. 

Resolved,  That  until  otherwise  ordered,  all  papers  pre 
sented  to  the  Senate  relating  to  the  condition  and  title  to 
representation  of  the  so-called  Confederate  States  shall  be 
referred  to  the  Joint  Committee  upon  that  subject." 

The  Committee  proceeded  to  the  consideration  of  the 
following  amendment  to  the  Constitution  proposed  by  the 
sub-committee  on  the  basis  of  representation : 

"  Congress  shall  have  power  to  make  all  laws  necessary 
and  proper  to  secure  to  all  citizens  of  the  United  States  in 
each  State  the  same  political  rights  and  privileges;  and  to 


55]  THE  ^URNAL  55 

all  persons  in  every  State  equal  protection  in  the  enjoyment 
of  life,  liberty  and  property." 

Mr.  Howard  moved  to  amend  by  inserting  the  words 
"  and  elective  "  after  the  word  "  political." 

The  question  was  taken  by  yeas  and  nays,  and  decided  in 
the  negative,  yeas  2,  nays  10,  absent  and  not  voting  3,  as 
follows : 

Yeas — Messrs.  Howard  and  Rogers — 2. 

Nays — The  Chairman,  Messrs.  Williams,  Stevens,  Wash- 
burne,  Morrill,  Grider,  Bingham,  Conkling,  Boutwell  and 
Blow — 10. 

Absent  and  not  voting — Messrs.  Grimes,  Harris  and 
Johnson. 

So  the  amendment  was  not  agreed  to. 

Mr.  Boutwell  moved  to  amend  by  striking  out  to  and  in 
cluding  the  words  "  political  rights  and  privileges,"  and 
inserting  in  lieu  thereof  the  following: 

"  Congress  shall  have  power  to  abolish  any  distinction  in 
the  exercise  of  the  elective  franchise  in  any  State,  which  by 
law,  regulation  or  usage  may  exist  therein." 

The  amendment  was  not  agreed  to. 

Mr.  Blow  moved  to  refer  the  proposed  amendment  to  a 
select  committee  of  three  to  be  appointed  by  the  chairman, 
with  instruction  to  carefully  review  the  same. 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  affirmative,  yeas  7,  nays  5,  absent  and  not  vot 
ing  3,  as  follows : 

Yeas — The  Chairman,  Messrs.  Morrill,  Grider,  Conk- 
ling,  Boutwell,  Blow  and  Rogers — /. 


56  THE  JOURNAL  [56 

Nays — Messrs.  Howard,  Williams,  Stevens,  Washburne 
and  Bingham — 5. 

Absent  and  not  voting — Messrs.  Grimes,  Harris  and 
Johnson — 3. 

The  motion  to  refer  was  accordingly  agreed  to. 

The  Chairman  appointed  as  the  sub-committee  Messrs. 
Bingham,  Boutwell  and  Rogers. 

On  motion  of  Mr.  Stevens  it  was 

Ordered,  That  the  injunction  of  secrecy  be  removed  so  far 
as  to  allow  any  member  of  the  Committee  to  announce  in 
his  place  in  Congress  the  substance  and  nature  of  the  pro 
posed  amendment  to  the  Constitution  of  the  United  States, 
under  consideration  by  the  Committee  this  morning. 

Adjourned  to  meet  on  call  of  the  Chairman. 

Saturday,  January  27,  1866. 

The  Committee  met  pursuant  to  the  call  of  its  Chair 
man;  absent  Messrs.  Blow  and  Rogers. 

Mr.  Bingham  from  the  sub-committee  on  the  powers  of 
Congress,  reported  back  the  proposed  amendment  of  the 
Constitution,  referred  to  them,  in  the  following  form: 

"  Congress  shall  have  power  to  make  all  laws  which  shall 
*  be  necessary  and  proper  to  secure  all  persons  in  every  state 
^  full  protection  in  the  enjoyment  of  life,  liberty  and  prop 
erty;  and  to  all  citizens  of  the  United  States  in  any  State 
the  same  immunities  and  also  equal  political  rights  and  privi 
leges." 

The  Chairman  moved  to  strike  out  the  word  "  also  "  in 
the  last  clause. 

The  motion  was  agreed  to. 


THE  JOURNAL  57 

Mr.  Johnson  moved  to  amend  the  last  clause  by  striking 
out  the  word  "  any  "  and  inserting  the  word  "  every  "  be 
fore  the  word  "  state." 

The  motion  was  agreed  to. 

Mr.  Johnson  moved  to  strike  out  the  word  "  all  "  before 
the  word  "  laws." 

The  motion  was  agreed  to. 

Mr.  Johnson  moved  to  strike  out  the  last  clause  of  the 
proposed  amendment. 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  negative,  yeas  4,  nays  6,  absent  and  not  voting 
5,  as  follows: 

Yeas — Messrs.   Harris,   Johnson,   Grider  and   Conkling 

—4- 

Nays — The  Chairman,  Messrs.  Williams,  Stevens,  Mor- 
rill,  Bingham  and  Boutwell — 6. 

Absent  and  not  voting — Messrs.  Grimes,  Howard,  Wash- 
burne,  Blow  and  Rogers — 5. 

So  the  amendment  was  not  agreed  to. 

Mr.  Stevens  moved  that  the  Chairman  be  instructed  to 
report  the  joint  resolution  as  amended  to  the  Senate,  and 
recommend  its  adoption  by  Congress. 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  negative,  yeas  5,  nays  5,  absent  and  not  vot 
ing  5,  as  follows : 

Yeas — The  Chairman,  Messrs.  Williams,  Stevens,  Mor- 
rill  and  Bingham — 5. 

Nays— Messrs.  Harris,  Johnson,  Grider,  Conkling  and 
Boutwell — 5. 


58  THE  JOURNAL 

Absent  and  not  voting1 — Messrs.  Grimes,  Howard,  Wash 
burne,  Blow  and  Rogers — 5. 

So  the  motion  was  not  agreed  to. 

On  motion  of  Mr.  Stevens,  the  further  consideration  of 
the  joint  resolution  was  postponed  until  the  next  meeting 
of  the  Committee. 

Adjourned  to  meet  on  call  of  the  Chairman. 

Washington,  January  31,  1866. 

The  Committee  met  pursuant  to  the  call  of  its  Chair 
man;  absent  Mr.  Washburne. 

Mr.  Stevens  laid  before  the  Committee  the  joint  resolu 
tion  heretofore  reported  by  the  Committee  proposing  an 
amendment  to  the  Constitution  of  the  United  States  in  re 
lation  to  the  basis  of  representation,  which  together  with 
all  propositions  upon  the  same  subject  offered  by  members 
of  the  House  were  by  order  of  the  House  again  referred  to 
this  Committee  without  instructions. 

The  Committee  proceeded  to  consider  the  joint  resolu 
tion. 

After  discussion, 

Mr.  Stevens  moved  to  amend  the  same  by  striking  out 
the  words  "  and  direct  taxes." 

The  motion  was  agreed  to  by  yeas  and  nays,  as  follows : 

Yeas — The  Chairman,  Messrs.  Grimes,  Harris,  Howard, 
Johnson,  Williams,  Stevens,  Morrill,  Bingham,  Conkling, 
Boutwell  and  Blow — 12. 

Nays — Messrs.  Grider  and  Rogers — 2. 

Absent  and  not  voting — Mr.  Washburne — i. 


59]  THE  JOURNAL  59 

Mr.  Johnson  moved  to  amend  the  proviso  so  that  it  should 
read: 

"  Provided  that  whenever  the  elective  franchise  shall  be 
denied  or  abridged  in  any  state,  on  account  of  race  or  color, 
in  the  election  of  the  members  of  the  most  numerous  branch 
of  the  State  legislature,  or  in  the  election  of  the  electors  for 
President  or  Vice-President  of  the  United  States,  or  mem 
bers  of  Congress,  all  persons  therein  of  such  race  or  color 
shall  be  excluded  from  the  basis  of  representation." 

The  motion  was  not  agreed  to. 

Mr.  Johnson  submitted  the  following  in  order  to  obtain 
the  sense  of  the  Committee : 

Resolved,  That  the  proposed  amendment  to  the  Constitu 
tion  of  the  United  States,  in  relation  to  the  basis  of  repre 
sentation,  should  be  so  modified  as  to  include  among  the 
grounds  of  disqualification  therein  referred  to  in  relation  to 
the  elective  franchise,  one  in  regard  to  former  condition  of 
slavery. 

The  question  was  taken  by  yeas  and  nays  and  it  was  de 
cided  in  the  negative,  yeas  6,  nays  7,  absent  and  not  voting 
2,  as  follows: 

Ayes — The  Chairman,  Messrs.  Howard,  Johnson,  Wil 
liams,  Grider  and  Blow — 6. 

Nays— Messrs.  Grimes,  Harris,  Stevens,  Morrill,  Bing- 
ham,  Conkling  and  Boutwell — 7. 

Absent  and  not  voting — Messrs.  Washburne  and  Rogers 

2 

So  the  motion  was  not  agreed  to. 

Mr.  Stevens  moved  that  the  joint  resolution  as  modified 


6o  THE  JOURNAL  [60 

be  reported  back  to  the  House  of  Representatives,  with  a 
recommendation  that  the  same  do  pass. 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  affirmative,  yeas  10,  nays  4,  absent  and  not  vot 
ing  i,  as  follows: 

Yeas — Messrs.  Grimes,  Harris,  Howard,  Williams,  Ste 
vens,  Morrill,  Bingham,  Conkling,  Boutwell  and  Blow — 10. 

Nays — The  Chairman,  Messrs.  Johnson,  Grider  and 
Rogers — 4. 

Absent  and  not  voting — Mr.  Washburne — i. 

The  motion  was  accordingly  agreed  to. 

Adjourned  to  meet  on  call  of  the  Chairman. 

Saturday,  February  3,  1866. 

The  Committee  met  pursuant  to  call  of  its  Chairman; 
absent  Messrs.  Johnson  and  Blow. 

The  Committee  resumed  the  consideration  of  the  pro 
posed  amendment  of  the  Constitution  of  the  United  States, 
reported  from  the  sub-committee  on  powers  of  Congress; 
the  same  having  been  amended,  when  last  under  consider 
ation  by  the  Committee  (January  27,  1866)  to  read  as  fol 
lows  : 

"  Congress  shall  have  power  to  make  laws  which  shall 
be  necessary  and  proper  to  secure  to  all  persons  in  every 
State  full  protection  in  the  enjoyment  of  life,  liberty  and 
property;  and  to  citizens  of  the  United  States  in  every 
\State  the  same  immunities,  and  equal  political  rights  and 
privileges." 

Mr.  Bingham  moved  the  following  as  a  substitute  by  way 
of  amendment: 


6i]  THE  JOURNAL  6l 

"  The  Congress  shall  have  power  to  make  all  laws  which 
shall  be  necessary  and  proper  to  secure  to  the  citizens  of 
each  state  all  privileges  and  immunities  of  citizens  in  the 
/several  states  (Art.  4,  Sec.  2) ;  and  to  all  persons  in  the 
several  States  equal  protection  in  the  rights  of  life,  liberty 
and  property  (5th  Amendment)." 

After  discussion, 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
termined  in  the  affirmative,  yeas  7,  nays  6,  absent  and  not 
voting  2,  as  follows : 

Yeas — Messrs.  Howard,  Williams,  Washburne,  Morrill, 
Bingham,  Boutwell  and  Rogers — 7. 

Nays — The  Chairman,  Messrs.  Grimes,  Harris,  Stevens, 
Grider  and  Conkling — 6. 

Absent  and  not  voting — Messrs.  Johnson  and  Blow — 2. 

So  the  amendment  was  agreed  to. 

The  question  was  upon  agreeing  to  the  proposed  amend 
ment  of  the  Constitution  as  amended. 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
termined  in  the  affirmative,  yeas  9,  nays  4,  absent  and  not 
voting  2,  as  follows : 

Yeas — The  Chairman,  Messrs.  Grimes,  Howard,  Williams, 
Stevens,  Washburne,  Morrill,  Bingham  and  Boutwell — 9. 

Nays — Messrs.  Harris,  Grider,  Conkling,  and  Rogers — 4. 

Absent  and  not  voting — Messrs.  Johnson  and  Blow — 2. 

So  the  proposition  as  amended  was  adopted. 

The  question  was  upon  ordering  the  same  to  be  reported 
to  Congress  for  adoption. 

On  motion  of  Mr.  Boutwell,  the  further  consideration  of 
the  same  was  postponed  for  the  present. 


62  THE  JOURNAL  [62 

Mr.  Howard  submitted  the  following  proposed  amend 
ment  to  the  Constitution  of  the  United  States,  for  future 
consideration  by  the  Committee : 

"  That  the  payment  of  every  kind  of  indebtedness  arising 
or  growing  out  of  the  late  rebellion,  contracted  or  accruing 
in  aid  of  it  or  in  order  to  promote  it,  is  forever  prohibited 
to  the  United  States  and  to  each  of  the  states ;  such  indebt 
edness  and  all  evidences  thereof  are  hereby  declared  and 
in  all  courts  and  places  shall  be  held  and  treated  as  in  vio 
lation  of  this  Constitution,  and  utterly  void  and  of  no  ef 
fect" 

Adjourned  to  meet  on  call  of  the  Chairman. 

Saturday,  February  10,  1866. 

The  Committee  met  pursuant  to  the  call  of  its  Chairman ; 
absent  Mr.  Washburne. 

The  Committee  resumed  the  consideration  of  the  joint 
resolution  proposing  an  amendment  to  the  Constitution  of 
the  United  States,  as  amended  on  motion  of  Mr.  Bingham 
at  the  last  meeting. 

Mr.  Stevens  moved  that  the  same  be  reported  to  the  two 
Houses  of  Congress. 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de^ 
cided  in  the  affirmative,  yeas  9,  nays  5,  absent  and  not  vot 
ing  i,  as  follows: 

Yeas — The  Chairman,  Messrs.  Grimes,  Howard,  Wil 
liams,  Stevens,  Morrill,  Bingham,  Boutwell  and  Blow — 9. 

Nays — Messrs.  Harris,  Johnson,  Grider,  Conkling  and 
Rogers— 5. 

Absent  and  not  voting — Mr.  Washburne — i. 


63]  THE  JOURNAL  63 

So  the  motion  was  agreed  to. 

Mr.  Grider  submitted  the  following  resolution,  the  con 
sideration  of  which  was  postponed  till  the  next  meeting  of 
the  Committee : 

Resolved,  That  the  sub-committee  on  the  condition  of 
Tennessee,  as  to  loyalty,  be  requested  to  report  to  this  Com 
mittee,  with  the  proof  taken  touching  that  question,  and 
that  this  Committee  at  its  next  meeting  report  to  the  House 
and  Senate  their  conclusions  and  the  evidence  in  the  case. 

Adjourned  to  meet  on  call  of  the  Chairman. 

Thursday,  February  15,  1866. 

The  Committee  met  pursuant  to  call  of  its  Chairman; 
absent  Mr.  Johnson. 

Mr.  Bingham,  from  the  sub-committee  on  Tennessee,  sub 
mitted  a  report  in  writing  with  accompanying  papers ;  also 
the  following  bill : 

Whereas,  The  people  of  Tennessee  have  presented  a  Con 
stitution  and  asked  admission  into  the  Union,  and  which  on 
due  examination  is  found  to  be  republican  in  its  form  of 
Government ; 

Be  it  enacted,  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
that  the  State  of  Tennessee  shall  be  one,  and  is  hereby  de 
clared  to  be  one  of  the  United  States  of  America,  on  an 
equal  footing  with  the  other  states  in  all  respects  whatever. 

Sec.  2.  And  be  it  further  enacted  that  until  the  Represen 
tatives  in  Congress  shall  be  apportioned  according  to  an 
actual  enumeration  of  the  inhabitants  of  the  United  States, 


64  THE  JOURNAL  [64 

the  State  of  Tennessee  shall  be  entitled  to  eight  representa 
tives  in  Congress. 

After  discussion,  the  further  consideration  of  the  same 
was  postponed  until  the  next  meeting. 

Adjourned  to  n  A.  M.  on  Saturday  next 

Washington,  February  17,  1866. 

The  Committee  met  pursuant  to  adjournment;  absent 
Mr.  Johnson. 

The  Committee  resumed  the  consideration  of  the  bill  in 
relation  to  Tennessee,  as  set  forth  in  the  journal  of  the  last 
meeting  of  the  Committee. 

Mr.  Grimes  moved  to  amend  the  preamble  by  inserting 
the  word  "  Constitution  "  after  the  word  "  which." 

The  amendment  was  agreed  to. 

Mr.  Stevens  moved  to  amend  the  second  section  so  that 
it  would  read  as  follows : 

"  Sec.  2.  And  be  it  further  enacted  that  until  the  next: 
congressional  election  the  State  of  Tennessee  shall  be  en 
titled  to  eight  representatives." 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  affirmative,  yeas  9,  nays  4,  absent  and  not  vot 
ing  2,  as  follows : 

Ayes — The  Chairman,  Messrs.  Grimes,  Howard,  Stevens, 
Washburne,  Merrill,  Bingham,  Conkling  and  Boutwell — 9. 

Nays — Messrs.  Williams,  Grider,  Blow  and  Rogers — 4. 

Absent  and  not  voting — Messrs.  Harris  and  Johnson — 2. 

So  the  amendment  was  agreed  to. 

Mr.  Williams  moved  to  strike  out  the  second  section  as 
amended. 


65]  THE  JOURNAL  65 

The  motion  was  agreed  to. 

Mr.  Harris  moved  the  following  as  a  substitute  for  the 
bill  as  amended : 

Resolved  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled; 
That  the  United  States  do  hereby  recognize  the  government 
of  the  State  of  Tennessee,  inaugurated  under  a  constitu 
tion  adopted  by  a  convention  of  the  people  of  that  State,  on 
the  8th  day  of  January,  1865,  and  ratified  by  a  vote  of  the 
people  at  an  election  held  on  the  226.  day  of  February,  1865,' 
as  the  legitimate  government  of  said  state,  under  which  said 
state  is  entitled  to  the  guarantee  and  all  other  rights  of  a 
state  government  under  the  Constitution  of  the  United 
States. 

Mr.  Stevens  moved  to  amend  the  preamble  of  the  bill  re 
ported  from  the  sub-committee  by  striking  out  the  words 
"  and  asked  admission  into  the  Union." 

Mr.  Johnson  here  appeared  in  the  committee  room. 

Mr.  Bingham  offered  the  following  as  a  substitute  for  the 
bill  of  the  sub-committee : 

Whereas,  The  people  of  Tennessee  did,  on  the  22d  day 
of  February,  in  the  year  of  our  Lord,  1865,  adopt  by  a 
large  popular  vote  an  amended  constitution  of  government, 
republican  in  form,  and  not  inconsistent  with  the  Costitu- 
tion  and  laws  of  the  United  States;  therefore, 

Be  it  resolved,  By  the  Senate  and  House  of  Representa 
tives  of  the  United  States  of  America  in  Congress  assem 
bled,  That  the  constitutional  relations  between  Tennessee 
and  the  Government  of  the  United  States  are  hereby  re 
stored. 


66  THE  JOURNAL  [66 

After  discussion,  Mr.  Bingham  submitted  the  following 
modification  of  his  substitute: 

Whereas,  The  people  of  Tennessee  did,  on  the  22nd  day 
of  February,  in  the  year  of  our  Lord,  1865,  adopt  by  a 
large  popular  vote  an  amended  constitution  of  government, 
republican  in  form,  and  not  inconsistent  with  the  Constitu 
tion  and  laws  of  the  United  States, 

And  whereas,  The  people  of  Tennessee  are  in  a  condition 
for  restoration  to  the  Union  as  a  state,  and  have  presented 
said  constitutional  government  to  Congress,  and  asked  to 
be  restored  to  their  constitutional  relations  to  the  Govern 
ment  of  the  United  States,  therefore, 

Be  it  resolved,  by  the  Senate  and  House  of  Representa 
tives  of  the  United  States  of  America,  in  Congress  assem 
bled,  That  the  constitutional  relations  between  Tennessee! 
and  the  Government  of  the  United  States  are  hereby  re 
stored,  and  the  said  state  of  Tennessee  is  declared  to  be  a 
state  in  the  Union  on  the  same  footing  with  the  other 
states  of  the  Union. 

Mr.  Harris  withdrew  his  substitute. 

The  question  was  then  taken  by  yeas  and  nays,  upon 
adopting  the  substitute  of  Mr.  Bingham  for  the  joint  reso 
lution  reported  from  the  sub-committee  on  Tennessee,  as 
the  basis  of  action  for  the  joint  committee,  and  it  was  de 
cided  in  the  affirmative,  yeas  9,  nays  4,  absent  or  not  voting 
2,  as  follows : 

Yeas — The  Chairman,  Messrs.  Grimes,  Harris,  Johnson, 
Williams,  Washburne,  Morrill,  Bingham  and  Blow — 9. 

Nays — Messrs.  Howard,  Stevens,  Grider  and  Rogers — 4. 


67]  THE  JOURNAL  67 

Absent  or  not  voting — Messrs.  Conkling  and  Boutwell 

— —  O 

So  the  substitute  was  adopted  as  the  basis  of  action  of 
the  Committee. 

Mr.  Rogers  moved  the  following : 

Resolved,  by  the  Senate  and  House  of  Representatives} 
of  the  United  States  of  America  in  Congress  assembled, 
That  the  State  of  Tennessee  is  one  of  the  states  of  and  in 
this  Union,  with  all  the  rights  and  privileges  of  the  other* 
states,  and  is  entitled  to  her  full  representation  in  the  Con 
gress  of  the  United  States. 

The  same  was  rejected. 

Mr.  Williams  moved  that  the  whole  subject  of  Tennessee} 
be  referred  to  a  select  committee  of  three  members,  to  be 
appointed  by  the  Chairman,  and  with  instructions  to  report 
thereon  to  the  joint  committee  at  the  next  meeting. 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de-» 
cided  in  the  affirmative,  yeas  8,  nays  7,  as  follows : 

Yeas — The  Chairman,  Messrs.  Howard,  Williams,  Ste 
vens,  Washburne,  Morrill,  Conkling  and  Boutwell — 8. 

Nays — Messrs.  Grimes,  Harris,  Johnson,  Grider,  Bing- 
ham,  Blow  and  Rogers — 7. 

So  the  motion  was  agreed  to. 

The  Chairman  appointed  the  following  members  as  the 
select  committee  just  ordered : 

Messrs.  Williams,  Conkling  and  Boutwell. 

Adjourned  till  ioj^  o'clock  A.  M.  on  Monday  next. 


68  THE  JOURNAL  [68 

Monday,  February  19,  1866. 

The  Committee  met  pursuant  to  adjournment;  absent  Mr. 
Johnson. 

Mr.  Conkling,  from  the  select  committee  on  Tennessee^ 
appointed  at  the  last  meeting  of  the  Committee,  made  a 
verbal  report,  and  submitted  the  following  as  a  substitute 
for  the  proposition  of  Mr.  Bingham  which  was  referred  to 
the  select  committee : 

Resolved,  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
that  the  functions  and  relations  of  Tennessee  as  a  member 
of  the  Union,  are  hereby  declared  to  be  established,  and  that! 
Senators  and  Representatives  therefrom,  their  several  elec 
tions,  qualifications  and  returns  being  regular  and  sufficient,, 
shall  be  entitled  to  admission. 

And  be  it  further  resolved  that  the  foregoing  declara 
tion  is  made  upon  the  following  fundamental  conditions  and 
guarantees : 

First.  The  state  of  Tennessee  shall  never  assume  or  pay 
any  debt  or  obligation  contracted  or  incurred  in  aid  of  the 
late  rebellion,  nor  shall  said  state  ever  repudiate  any  debt 
or  obligation  contracted  or  incurred  in  aid  of  the  Federal 
government  against  said  rebellion;  and  said  state  shall  be 
forever  bound  in  like  manner  as  the  other  states  within  thig 
Union  for  the  debt  of  the  United  States. 

Second.  The  said  state  shall  forever  maintain  in  its  con 
stitution  the  provision  therein  contained  disavowing  the 
doctrine  of  secession. 

Third.  The  said  state  shall,  for  not  less  than  five  years 


69]  THE  JOURNAL  69 

from  the  ratification  of  this  resolution  as  hereinafter  pro 
vided,  exclude  from  the  elective  franchise,  and  from  offices 
of  honor,  trust  or  profit,  all  those  who  adhered  to  and  vol^ 
untarily  gave  aid  or  comfort  to  the  late  rebellion. 

And  be  it  further  resolved,  that  the  ratification  of  the 
foregoing  conditions  by  a  majority  of  the  qualified  electors 
of  said  state,  in  such  manner  as  the  legislature  thereof  may 
prescribe,  shall  be  deemed  an  acceptance  of  this  resolution; 
and  upon  a  proclamation  of  such  ratification  by  the  Presn 
dent  of  the  United  States,  the  same  shall  become  operative. 

Mr.  Bingham  moved  to  strike  out  the  third  condition. 

Mr.  Boutwell  moved  to  amend  the  second  resolution  by 
adding  to  it  the  following : 

Fourth.  The  said  state  shall  make  no  distinction  in  the 
exercise  of  the  elective  franchise  on  account  of  race  or 
color. 

Pending  the  consideration  of  which, 

The  Chairman  moved  to  amend  the  first  condition  of  thej 
second  resolution  by  striking  out  all  after  the  words  "  in 
aid  of  the  late  rebellion." 

After  discussion, 

The  Committee  adjourned  till  iol/2  o'clock  A.  M.  to 
morrow. 

Tuesday,  February  20,  1866. 

The  Committee  met  pursuant  to  adjournment;  absent  Mr. 
Johnson. 

The  Committee  resumed  the  consideration  of  the  joint 
resolution  in  relation  to  Tennessee. 

The  pending  question  was  upon  the  motion  of  the  Chair- 


70  THE  JOURNAL  [70 

man  to  amend  the  first  condition  of  the  second  resolution,, 
so  that  the  same  should  read  as  follows : 

'The  State  of  Tennessee  shall  never  assume  or  pay  any 
debt  or  obligation  contracted  or  incurred  in  aid  of  the  late 
rebellion." 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  affirmative,  yeas  8,  nays  4,  absent  or  not  vot 
ing  3,  as  follows: 

Yeas — The  Chairman,  Messrs.  Harris,  Howard,  Wash- 
burne,  Morrill,  Grider,  Bingham  and  Rogers — 8. 

Nays — Messrs.  Williams,  Stevens,  Conkling  and  Bout- 
well — 4. 

Absent  or  not  voting — Messrs.  Grimes,  Johnson  and 
Blow — 3. 

So  the  amendment  was  agreed  to. 

The  question  then  recurred  upon  the  motion  of  Mr.  Bout- 
well  to  still  farther  amend  the  first  resolution  by  adding  the 
following  condition : 

"  Fourth.  Said  state  shall  make  no  distinction  in  the  ex 
ercise  of  the  elective  franchise  on  account  of  race  or  color." 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  negative,  yeas  5,  nays  6,  absent  or  not  voting  4, 
as  follows : 

Yeas — Messrs.  Howard,  Stevens,  Washburne,  Morrill 
and  Bout  well — 5. 

Nays — Messrs.  Harris,  Williams,  Grider,  Bingham, 
Conkling  and  Rogers — 6. 

Absent  or  not  voting — The  Chairman,  Messrs.  Grimes, 
Johnson  and  Blow — 4. 


7j]  THE  JOURNAL  7! 

So  the  amendment  was  not  agreed  to. 

Mr.  Bingham  moved  the  following  as  a  substitute : 

"  Whereas,  The  people  of  Tennessee  have  presented  a 
constitution  to  Congress,  which  constitution  on  due  exami 
nation  is  found  to  be  republican  in  its  form  of  government, 
and  the  people  are  found  to  be  in  a  condition  to  exercise  the 
functions  of  a  state,  and  can  only  exercise  the  same  by  the 
consent  of  the  law-making  power  of  the  United  States; 
Therefore, 

Be  it  enacted,  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled* 
That  the  state  of  Tennessee  is  hereby  declared  to  be  one  of 
the  United  States  of  America,  on  an  equal  footing  with  the 
other  states  in  all  respects  whatever." 

Pending  the  consideration  of  which, 

^7  Mr.  Stevens  said  his  opinion  as  to  the  expediency  and 
propriety  of  this  action  on  the  part  of  the  joint  committee 
had  been  materially  changed  since  yesterday. 

The  first  duty  of  the  committee  was  to  declare  the  power 
of  Congress  over  this  subject  of  reconstruction.  He  there- 
fore  moved  to  postpone  all  other  business  for  the  purpose  of 
enabling  him  to  offer  the  following  concurrent  resolution, 
which  he  should  ask  immediate  action  upon: 

"  Concurrent  resolution  concerning  the  insurrectionary 
states, 

Be  it  resolved,  by  the  House  of  Representatives,  the  Sen 
ate  concurring,  that  in  order  to  close  agitation  upon  a  ques 
tion  which  seems  likely  to  disturb  the  action  of  the  govern-" 
ment,  as  well  as  to  quiet  the  uncertainty  which  is  agitating1 


72  THE  JOURNAL  [72 

the  minds  of  the  people  of  the  eleven  states  which  have  been 
declared  to  be  in  insurrection,  no  senator  or  representative! 
shall  be  admitted  into  either  branch  of  Congress  from  any 
of  said  states  until  Congress  shall  have  declared  such  state 
entitled  to  such  representation." 

After  discussion,  the  question  was  taken  by  yeas  and  nays 
upon  the  motion  to  postpone,  and  it  was  decided  in  the  af 
firmative,  yeas  10,  nays  4,  absent  i,  as  follows: 

Yeas — The  Chairman,  Messrs.  Grimes,  Harris,  Howard, 
Williams,  Stevens,  Washburne,  Morrill,  Conkling  and  Bout- 
well — 10. 

Nays — Messrs.  Grider,  Bingham,  Blow  and  Rogers — 4. 

Absent — Mr.  Johnson — i. 

So  the  motion  was  agreed  to. 

Mr.  Stevens  submitted  the  foregoing  concurrent  resolu 
tion,  and  moved  it  be  adopted  and  reported  forthwith  to  the 
House  of  Representatives. 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  affirmative,  yeas  12,  nays  2,  absent  i,  as  fol 
lows: 

Yeas — The  Chairman,  Messrs.  Grimes,  Harris,  Howard, 
Williams,  Stevens,  Washburne,  Morrill,  Bingham,  Conk- 
ling,  Boutwell  and  Blow — 12. 

Nays — Messrs.  Grider  and  Rogers — 2. 

Absent — Mr.  Johnson — i. 

So  the  resolution  was  adopted. 

Adjourned  to  meet  on  call  of  the  Chairman. 

Saturday,  March  3,  1866. 

The  Committee  met  pursuant  to  call  of  the  Chairman ; 
Absent,  Messrs.  Grimes,  Howard  and  Blow. 


73]  THE  JOURNAL  73 

The  following  resolution  of  the  Senate  was  received  and 
recorded : 

"  February  2Oth,  1866. 

"  On  motion  by  Mr.  Wilson: 

"  Resolved,  That  the  Joint  Committee  on  Reconstruction 
be  directed  to  inquire  into  and  report  how  far  the  states 
lately  in  rebellion,  or  any  of  them,  have  complied  with  the 
terms  proposed  by  the  President  as  conditions  precedent  to 
their  resumption  of  practical  relations  with  the  United 
States ;  which  terms  and  conditions  were  as  follows,  viz. : 

"  ist.  That  the  several  state  constitutions  should  be 
amended  by  the  insertion  of  a  provision  abolishing  slavery. 

"  2nd.  That  the  several  state  conventions  should  declare 
null  and  void  the  ordinances  of  secession  and  the  laws  and 
decrees  of  the  Confederacy. 

"  3rd.  That  the  several  state  legislatures  should  ratify  the 
amendment  to  the  Federal  Constitution  abolishing  slavery. 

"  4th.  That  the  rebel  debt,  state  and  confederate,  should 
be  repudiated. 

/  "  5th.  That  civil  rights  should  be  secured  by  laws  appln 
cable  alike  to  whites  and  blacks." 

The  Committee  resumed  the  consideration  of  the  joint 
resolution  concerning  Tennessee. 

The  pending  question  was  upon  the  motion  of  Mr.  Bing- 
ham  to  substitute  for  the  basis  of  the  action  of  the  Com 
mittee  that  which  was  offered  by  him  at  the  last  meeting  of 
the  Committee. 

Mr.  Bingham  modified  the  preamble  of  his  substitute  by 
inserting  after  the  words  "  the  functions  of  a  state,"  the 


74  THE  JOURNAL  [74 

words  ''within  this  Union;"  so  that  the  same  would  read 
''  and  the  people  are  found  to  be  in  a  condition  to  exercise 
the  functions  of  a  state  within  this  Union,"  etc. 

After  discussion, 

The  question  was  taken  upon  the  motion  to  substitute, 
and  it  was  decided  in  the  affirmative,  yeas  7,  nays  5,  absent 
or  not  voting  3,  as  follows : 

Yeas — Messrs.  Harris,  Johnson,  Stevens,  Washburne, 
Grider,  Bingham  and  Rogers — 7. 

Nays — The  Chairman,  Messrs.  Williams,  Morrill,  Conk- 
ling  and  Boutwell — 5. 

Absent  or  not  voting — Messrs.  Grimes,  Howard  and 
Blow— 3. 

So  the  motion  to  substitute  was  agreed  to. 

Mr.  Johnson  moved  to  amend  the  substitute  by  strikingj 
out  of  the  preamble  the  last  clause  as  follows : 

"  And  can  only  exercise  the  same  by  the  consent  of  the 
law-making  power  of  the  United  States." 

After  discussion. 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de- 
cided  in  the  negative,  yeas  4,  nays  7,  absent  or  not  voting  4, 
as  follows : 

Yeas — Messrs.  Harris,  Johnson,  Grider  and  Rogers — 4. 

Nays — The  Chairman,  Messrs.  Williams,  Stevens,  Wash 
burne,  Morrill,  Bingham  and  Boutwell — 7. 

Absent  or  not  voting — Messrs.  Grimes,  Howard,  Conk- 
ling  and  Blow — 4. 

So  the  motion  to  strike  out  was  not  agreed  to. 

Mr.  Blow  entered  the  committee  room  about  this  time. 


75]  THE  JOURNAL  75 

The  Chairman  stated  that  he  had  just  received  a  note 
from  Mr.  Grimes,  stating  that  he  was  absent  on  account  of 
indisposition,  and  requesting  the  Chairman  to  cast  his  vote 
for  him  on  all  questions  before  the  Committee. 

The  question  was  upon  adopting  the  preamble  and  bill 
substituted  for  the  joint  resolution  of  the  select  committee, 
on  motion  of  Mr.  Bin g ham. 

During  the  discussion  thereon, 

The  Chairman  read  a  preamble  and  resolution  in  relation 
to  Tennessee,  which  he  had  drawn  up,  but  stated  that  he 
would  not  offer  it  for  the  action  of  the  Committee. 

Mr.  Bingham  said  he  would,  with  the  consent  of  the 
Committee,  modify  his  preamble,  in  accordance  with  what 
the  Chairman  had  read,  and  also  change  the  form  of  the 
bill  so  as  to  make  it  a  joint  resolution. 

Leave  was  granted  and  the  preamble  and  bill  of  Mr. 
Bingham  were  modified  as  follows : 

"  Whereas,  The  people  of  Tennessee  have  made  known 
to  the  Congress  of  the  United  States  their  desire  that  the 
constitutional  relations  heretofore  existing  between  them 
and  the  United  States  may  be  fully  established,  and  did, 
on  the  22d  day  of  February,  1865,  by  a  large  popular  vote, 
adopt  and  ratify  a  constitution  of  government,  republican 
in  form  and  not  inconsistent  with  the  Constitution  and  laws! 
of  the  United  States,  and  a  state  government  has  been  or 
ganized  under  the  provisions  thereof,  which  said  provisions 
and  the  laws  passed  in  pursuance  thereof  proclaim  and  de 
note  loyalty  to  the  Union ; 

And  ivhereas,  The  people  of  Tennessee  are  found  to  be 


76  THE  JOURNAL  [76 

in  a  condition  to  exercise  the  functions  of  a  state  within! 
this  Union ;  and  can  only  exercise  the  same  by  the  consent1 
of  the  law-making  power  of  the  United  States;  therefore, 
be  it 

Resolved,  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
That  the  State  of  Tennessee  is  hereby  declared  to  be  one  of 
the  United  States  of  America,  on  an  equal  footing  with  the 
other  states  in  all  respects  whatever." 

The  question  was  upon  adopting  the  preamble  and  joint 
resolution  as  modified. 

Mr.  Harris  and  Mr.  Conkllng  called  for  a  division  of  the) 
question. 

The  question  was  first  taken  by  yeas  and  nays,  upon 
agreeing  to  the  joint  resolution,  and  it  was  decided  in  the 
affirmative,  yeas  8,  nays  4,  absent  or  not  voting  3,  as  fol 
lows: 

Yeas — Messrs.  Harris,  Johnson,  Williams,  Stevens, 
Grider,  Bingham,  Blow  and  Rogers — 8. 

Nays — The  Chairman,  Messrs.  Washburne,  Morrill  and 
Boutwell — 4. 

Absent  or  not  voting — Messrs.  Grimes,  Howard  and 
Conkling — 3. 

So  the  joint  resolution  was  agreed  to. 

The  question  was  then  taken  by  yeas  and  nays,upon 
agreeing  to  the  preamble,  and  it  was  decided  in  the  affir 
mative,  yeas  7,  nays  5,  absent  or  not  voting  3,  as  follows : 

Yeas — The  Chairman,  Messrs.  Johnson,  Williams,  Wash 
burne,  Grider,  Bingham  and  Blow — 7. 


THE  JOURNAL  77 

Nays — Messrs.  Harris,  Stevens,  Morrill,  Boutwell  and 
Rogers— 5. 

Absent  or  not  voting — Messrs.  Grimes,  Howard  and 
Conkling — 3. 

So  the  preamble  was  agreed  to. 

Pending  the  calls  of  the  yeas  and  nays  upon  agreeing  to/ 
the  preamble  and  resolution, 

The  Chairman  asked  to  have  the  votes  of  Mr.  Grimes  re-, 
corded,  in  accordance  with  his  request  in  a  note  to  the  Chair 
man. 

Mr.  Rogers  objected,  and  the  votes  were  recorded  and  the) 
results  announced  as  above. 

Mr.  Bingham  moved  that  the  preamble  and  joint  resolu 
tion  together  with  the  memorial,  accompanying  papers  and 
testimony  relating  to  Tennessee,  be  reported  to  the  Housei 
of  Representatives. 

Mr.  Conkling  moved  to  amend  the  motion  of  Mr.  Bing 
ham  by  adding  that  all  the  testimony  taken  by  sub-com 
mittees  in  relation  to  the  states  which  have  been  declared) 
to  be  in  insurrection,  which  may  be  ready  for  publication, 
be  also  reported  to  Congress  and  its  printing  recommended. 

After  discussion, 

The  question  was  taken  upon  the  amendment  of  Mr. 
Conkling,  and  upon  a  division  there  were  ayes  4,  noes  6. 

So  the  amendment  was  not  agreed  to. 

The  motion  of  Mr.  Bingham  was  then  agreed  to. 

Mr.  Conkling  and  Mr.  Rogers  severally  asked  and  ob 
tained  leave  to  submit  minority  reports. 

Mr.  Washburne  moved  that  the  several  sub-committees 


78  THE  JOURNAL  [78 

be  instructed  to  prepare  and  arrange  for  publication  the  tes 
timony  taken  by  them,  and  that  the  same  be  reported  to  Con 
gress  and  its  printing  recommended. 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  affirmative,  yeas  9,  nays  3,  absent  or  not  vot 
ing  3,  as  follows : 

Yeas — The  Chairman,  Messrs.  Harris,  Williams,  Ste 
vens,  Washburne,  Bingham,  Conkling,  Boutwell  and  Blow 

— 9- 

Nays — Messrs.  Johnson,  Grider  and  Rogers — 3. 

Absent  or  not  voting — Messrs.  Grimes,  Howard  and 
Morrill — 3. 

So  the  motion  was  agreed  to. 

Adjourned  to  meet  on  call  of  the  Chairman. 

Washington,  March  5,  1866. 

The  Committee  met  pursuant  to  the  call  of  its  Chairman; 
absent  Messrs.  Howard  and  Blow. 

Mr.  Bingham  moved  to  reconsider  the  vote  by  which  the 
Committee  agreed  to  the  joint  resolution  in  relation  to 
Tennessee,  and  directed  the  same  to  be  reported  to  the 
House  of  Representatives. 

The  motion  to  reconsider  was  agreed  to. 

Mr.  Bingham  moved  to  amend  the  joint  resolution  by 
striking  out  at  the  close  the  words  "  in  all  respects  what 
ever,"  and  adding  to  the  resolution  the  following:  "upon 
the  express  condition  that  the  people  of  Tennessee  will 
maintain  and  enforce  in  good  faith  their  existing  constitu 
tion  and  laws  excluding  those  who  have  been  engaged  in 


79]  THE  JOURNAL  jg 

rebellion  against  the  United  States  from  the  exercise  of  the) 
elective  franchise  for  the  respective  periods  of  time  therein 
provided  for,  and  shall  also  exclude  for  like  period  of  time 
the  same  persons  from  eligibility  to  office." 

Mr.  Stevens  moved  to  amend  the  amendment  by  addition, 
as  follows :  "  which  condition  shall  be  ratified  by  the  legisla 
ture  of  Tennessee,  or  the  people  thereof  as  the  legislature 
may  direct  before  this  act  shall  take  effect." 

The  question  was  taken  by  yeas  and  nays,  upon  the 
amendment  to  the  amendment,  and  it  was  decided  in  the  af 
firmative,  yeas  8,  nays  5,  absent  or  not  voting  2,  as  follows : 

Yeas — The  Chairman,  Messrs.  Grimes,  Williams,  Ste 
vens,  Washburne,  Morrill,  Conkling  and  Boutwell — 8. 

Nays — Messrs.  Harris,  Johnson,  Grider,  Bingham  and 
Rogers— 5. 

Absent  or  not  voting — Messrs.  Howard  and  BlowT — 2. 

So  the  amendment  to  the  amendment  was  agreed  to. 

The  question  was  then  taken,  by  yeas  and  nays,  upon  the 
amendment  as  amended,  and  it  was  decided  in  the  affirma-* 
tive,  yeas  10,  nays  3,  absent  or  not  voting  2,  as  follows: 

Yeas — The  Chairman,  Messrs.  Grimes,  Harris,  Williams, 
Stevens,  Washburne,  Morrill,  Bingham,  Conkling  and  Bout- 
well — 10. 

Nays — Messrs.  Johnson,  Grider  and  Rogers — 3. 

Absent  and  not  voting — Messrs.  Howrard  and  Blow — 2. 

So  the  amendment  as  amended  was  agreed  to. 

Mr.  Conkling  moved  to  further  amend  the  joint  resolu 
tion  by  inserting  before  the  part  adopted  on  motion  of  Mr. 
Stevens  the  following : 


8o  THE  JOURNAL  [go 

"  and  the  state  of  Tennessee  shall  never  assume  or  pay 
any  debt  or  obligation  contracted  or  incurred  in  aid  of  the 
late  rebellion ;  nor  shall  said  state  ever  in  any  manner  claim 
from  the  United  States  or  make  any  allowance  of  compen 
sation  for  slaves  emancipated  or  liberated  in  any  way  what-^ 
ever." 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  affirmative,  yeas  10,  nays  3,  absent  or  not  vot 
ing  2,  as  follows : 

Yeas — The  Chairman,  Messrs*  Grimes,  Harris,  Wil 
liams,  Stevens,  Washburne,  Morrill,  Bingham,  Conkling 
and  Bout  well — 10. 

Nays — Messrs.  Johnson,  Grider  and  Rogers — 3. 

Absent  and  not  voting — Messrs.  Howard  and  Blow — 2. 

So  the  amendment  was  agreed  to. 

Mr.  Stevens  moved  to  further  amend  the  preamble  and 
joint  resolution  by  transferring  the  enacting  clause  from 
just  before  the  joint  resolution  to  the  beginning  of  the  pre 
amble. 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  affirmative,  yeas  10,  nays  3,  absent  2,  as  fol 
lows: 

Yeas — The  Chairman,  Messrs.  Grimes,  Harris,  Williams, 
Stevens,  Washburne,  Morrill,  Bingham,  Conkling  and  Bout- 
well — 10. 

Nays — Messrs.  Johnson,  Grider  and  Rogers — 3. 

Absent  or  not  voting — Messrs.  Howard  and  Blow — 2. 

So  the  motion  of  Mr.  Stevens  was  agreed  to. 

Mr.  Harris  moved  to  strike  out  the  following  words : 


Si]  THE  JOURNAL  gl 

"  and  can  only  exercise  the  same  by  the  consent  of  the  law- 
making  power  of  the  United  States." 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  negative,  yeas  5,  nays  8,  absent  and  not  vot 
ing  2,  as  follows : 

Yeas — The  Chairman,  Messrs.  Harris,  Johnson,  Grider 
and  Rogers — 5. 

Nays — Messrs.  Grimes,  Williams,  Stevens,  Washburne, 
Morrill,  Bingham,  Conkling  and  Boutwell — 8. 

Absent  and  not  voting — Messrs.  Howard  and  Blow — 2. 

The  question  was  then  taken  by  yeas  and  nays,  upon 
agreeing  to  the  joint  resolution  as  amended,  and  directing 
the  same  to  be  reported  to  the  House  of  Representatives, 
and  it  was  decided  in  the  affirmative,  yeas  8,  nays  5,  absent 
and  not  voting  2,  as  follows : 

Yeas — The  Chairman,  Messrs.  Grimes,  Harris,  Williams, 
Stevens,  Morrill,  Bingham  and  Conkling — 8. 

Nays — Messrs.  Johnson,  Washburne,  Grider,  Boutwell 
and  Rogers — 5. 

Absent  or  not  voting — Messrs.  Howard  and  Blow — 2. 

So  the  joint  resolution  was  adopted  and  ordered  to  be  re 
ported  to  the  House  of  Representatives. 

Adjourned  to  meet  on  call  of  the  Chairman. 

Washington,  April  16,  1866. 

The  Committee  met  pursuant  to  the  call  of  the  Chairman ; 
absent,  Messrs.  Fessenden,  Harris,  Grider,  Conkling,  Bout- 
well  and  Blow. 

Mr.  Morrill  stated  that  he  called  on  Mr.  Fessenden 


82  THE  JOURNAL  [82 

terday,  and  found  him  confined  to  his  bed  by  illness,  and 
under  the  care  of  a  physician. 

Mr.  Stevens  (Chairman  of  the  House  portion  of  the  Com 
mittee)  took  the  chair  and  called  the  Committee  to  order. 

The  object  of  the  meeting  was  stated  to  be  to  hear  Mr. 
Stewart,  Senator  from  the  State  of  Nevada,  explain  the  pur 
pose  and  effect  of  the  joint  resolution,  introduced  by  him  in 
the  Senate  of  the  United  States,  on  the  I2th  inst,  being 
entitled  "  Joint  Resolution  (S.  R.  62)  proposing  an  amend 
ment  to  the  Constitution  of  the  United  States;  also  setting 
forth  certain  conditions  upon  which  the  states,  the  people 
of  which  have  been  lately  in  insurrection  against  the  United 
States,  shall  be  restored  to  their  representation  in  Con- 
gress." 

Mr.  Stewart  proceeded  to  address  the  Committee  at 
length  in  support  and  advocacy  of  his  resolution. 

After  he  had  concluded, 

On  motion  of  Mr.  Grimes, 

The  Committee  adjourned  to  1 1  A.  M.  on  Saturday  next. 

Washington,  April  21,  1866. 

The  Committee  met  pursuant  to  adjournment;  absent. 
The  Chairman,  and  Messrs.  Harris  and  Conkling. 

Mr.  Stevens  moved  that  Mr.  Johnson  take  the  chair  in 
absence  of  the  Chairman. 

The  motion  was  agreed  to. 

Mr.  Grimes  stated  that  Mr.  Fessenden  was  recovering 
and  would  probably  be  out  next  week. 

On  motion  of  Mr.  Ste<vens  it  was 


83]  THE  JOURNAL  83 

Resolved,  That  in  the  opinion  of  this  Committee  it  is  ex 
pedient  that  the  taking  of  testimony  by  the  several  sub 
committees  be  concluded  next  week. 

Mr.  Stevens  said  he  had  a  plan  of  reconstruction,  one  not 
of  his  own  framing,  but  which  he  should  support,  and 
which  he  submitted  to  the  Committee  for  consideration. 

It  was  read  as  follows : 

A  joint  resolution  proposing  an  amendment  to  the  Con 
stitution,  and  to  provide  for  the  restoration  to  the  states 
lately  in  insurrection  of  their  full  political  rights. 

Whereas,  It  is  expedient  that  the  States  lately  in  insur 
rection  should,  at  the  earliest  day  consistent  with  the  future 
peace  and  safety  of  the  Union,  be  restored  to  full  participa 
tion  in  all  political  rights ;  therefore, 

Be  it  resolved,  by  the  Senate  and  House  of  Representa-i 
tives  of  the  United  States  of  America  in  Congress  assem 
bled  (two-thirds  of  both  Houses  concurring),  that  the  fol 
lowing  Article  be  proposed  to  the  Legislatures  of  the  sev 
eral  states  as  an  amendment  to  the  Constitution  of  the 
United  States,  which,  when  ratified,  by  three-fourths  of 
said  legislatures,  shall  be  valid  as  part  of  the  Constitution, 
namely : 

Article- 
Section  i.  No  discrimination  shall  be  made  by  any  state, 
/nor  by  the  United  States,  as  to  the  civil  rights  of  persons 
because  of  race,  color,  or  previous  condition  of  servitude. 

Sec.  2.  From  and  after  the  fourth  day  of  July,  in  the 
year  one  thousand  eight  hundred  and  seventy-six,  no  dis 
crimination  shall  be  made  by  any  state,  nor  by  the  United 


84  THE  JOURNAL  [84 

States,  as  to  the  enjoyment  by  classes  of  persons  of  the  right 
of  suffrage,  because  of  race,  color,  or  previous  condition  of 
servitude. 

Sec.  3.  Until  the  fourth  day  of  July,  one  thousand  eight 
hundred  and  seventy-six,  no  class  of  persons,  as  to  the  right 
of  any  of  whom  to  suffrage  discrimination  shall  be  made  by 
any  state,  because  of  race,  color,  or  previous  condition  of 
servitude,  shall  be  included  in  the  basis  of  representation. 

Sec.  4.  Debts  incurred  in  aid  of  insurrection  or  of  war 
against  the  Union,  and  claims  of  compensation  for  loss  of 
involuntary  service  or  labor,  shall  not  be  paid  by  any  state 
nor  by  the  United  States. 

Sec.  5.  Congress  shall  have  power  to  enforce  by  appro 
priate  legislation,  the  provisions  of  this  article. 

And  be  it  further  resolved,  That  whenever  the  above  re 
cited  amendment  shall  have  become  part  of  the  Constitu 
tion,  and  any  state  lately  in  insurrection  shall  have  ratified, 
the  same,  and  shall  have  modified  its  constitution  and  laws 
in  conformity  with  the  first  section  thereof,  the  Senators* 
and  Representatives  from  such  state,  if  found  duly  elected 
and  qualified,  shall,  after  having  taken  the  usual  oath  Q£ 
office,  be  admitted  as  such : 

Provided,  That  no  person  who,  having  been  an  officer  in 
the  army  or  navy  of  the  United  States,  or  having  been  a 
member  of  the  Thirty-sixth  Congress,  or  of  the  Cabinet  in 
the  year  one  thousand  eight  hundred  and  sixty,  took  part 
in  the  late  insurrection,  shall  be  eligible  to  either  branch  of 
the  national  legislature  until  after  the  fourth  day  of  July, 
one  thousand  eight  hundred  and  seventy-six. 


85]  THE  JOURNAL  85 

Mr.  Stevens  said  he  had  submitted  the  proposed  amend 
ment  to  the  Constitution  with  the  proposed  legislation  by 
Congress,  to  the  Committee  for  action  together;  but  it 
would  be  necessary  to  submit  the  two  propositions  separ 
ately  to  Congress  for  its  action. 

The  Committee  then  proceeded  to  consider  the  same. 

The  question  was  upon  agreeing  to  the  proposed  first  sec 
tion  of  the  amendment. 

Mr.  Bingham  moved  to  amend  the  same  by  adding  the 

J  following:  "  nor  shall  any  state  deny  to  any  person  within 

its  jurisdiction  the  equal  protection  of  the  laws,  nor  take 

^private  property  for  public  use  without  just  compensation." 

After  discussion  thereon 

The  question  was  taken,  and  it  was  decided  in  the  nega 
tive,  yeas  5,  nays  7,  absent  3,  as  follows : 

Yeas — Messrs.  Johnson,  Stevens,  Bingham,  Blow  and 
Rogers — 5. 

Nays — Messrs.  Grimes,  Howard,  Williams,  Washburne, 
Morrill,  Grider  and  Boutwell — 7. 

Absent — Messrs.  Fessenden,  Harris  and  Conkling — 3. 

So  the  amendment  was  not  agreed  to. 

The  question  was  taken  upon  adopting  the  first  section, 
and  it  was  decided  in  the  affirmative,  yeas  10,  nays  2,  ab 
sent  3,  as  follows : 

Yeas — Messrs.  Grimes,  Howard,  Johnson,  Williams,  Ste 
vens,  Washburne,  Morrill,  Bingham,  Boutwell  and  Blow 
— 10. 

Nays — Messrs.  Grider  and  Rogers — 2. 

Absent — Messrs.  Fessenden,  Harris  and  Conkling — 3. 


86  THE  JOURNAL  [86 

The  first  section  was  accordingly  adopted. 

The  question  was  upon  adopting  the  second  section. 

After  discussion  thereon 

The  question  was  taken,  and  it  was  decided  in  the  affirma 
tive,  yeas  8,  nays  4,  absent  3,  as  follows : 

Yeas — Messrs.  Grimes,  Harris,  Williams,  Stevens, 
Washburne,  Morrill,  Bingham  and  Blow — 8. 

Nays — Messrs.  Johnson,   Grider,  Boutwell  and  Rogers 

-4- 

Absent — Messrs.  Fessenden,  Harris  and  Conkling — 3. 

So  the  second  section  was  adopted. 

The  question  was  then  taken  upon  adopting  the  third  sec 
tion,  and  it  was  decided  in  the  affirmative,  yeas  9,  nays  3, 
absent  3,  as  follows: 

Yeas — Messrs.  Grimes,  Howard,  Williams,  Stevens, 
Wrashburne,  Morrill,  Bingham,  Boutwell  and  Blow — 9. 

Nays — Messrs.  Johnson,  Grider  and  Rogers — 3. 

Absent — Messrs.  Fessenden,  Harris  and  Conkling — 3. 

So  the  third  section  was  adopted. 

The  question  was  upon  adopting  the  fourth  section. 

Mr.  Rogers  moved  to  amend  by  striking  out  the  words, 
"  by  any  state  nor,"  so  that  the  clause  would  read — "  shall 
not  be  paid  by  the  United  States." 

The  question  was  taken,  and  it  was  decided  in  the  nega 
tive,  yeas  3,  nays  9,  absent  3,  as  follows : 

Yeas — Messrs.  Johnson,  Grider  and  Rogers — 3. 

Nays — Messrs.  Grimes,  Howard,  Williams,  Stevens, 
Washburne,  Morrill,  Bingham,  Boutwell  and  Blow — 9. 

Absent — Messrs.  Fessenden,  Harris  and  Conkling — 3. 


87]  THE  JOURNAL  87 

So  the  amendment  was  not  agreed  to. 

Mr.  Stevens  moved  to  amend  the  section  by  insert  ing- 
after  the  word  "  debts  "  the  words  "  or  obligations  already 
incurred,  or  which  may  hereafter  be,"  so  that  it  would  read 
— "Debts  or  obligations  already  incurred,  or  which  may, 
hereafter  be  incurred  in  aid  of  insurrection,"  etc. 

The  amendment  was  agreed  to. 

The  question  was  taken  upon  the  section  as  amended,  and 
it  was  decided  in  the  affirmative,  yeas  10,  nays  2,  absent  3, 
as  follows : 

Yeas — Messrs.  Grimes,  Howard,  Johnson,  Williams,  Ste 
vens,  Washburne,  Morrill,  Bingham,  Boutwell  and  Blow 
— 10. 

Nays — Messrs.  Grider  and  Rogers — 2. 

Absent — Messrs.  Fessenden,  Harris  and  Conkling — 3. 

So  the  fourth  section  as  amended  was  adopted. 

Mr.  Bingham  moved  to  insert  as  section  five  the  follow- 
ing: 

"  Sec.  5.  No  state  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
//United  States;  nor  shall  any  state  deprive  any  person  of 
life,  liberty  or  property  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protec 
tion  of  the  laws." 

After  discussion  thereon 

The  question  was  taken,  and  it  was  decided  In  the  affir 
mative,  yeas  10,  nays  2,  absent  3,  as  follows: 

Yeas — Messrs.  Grimes,  Howard,  Johnson,  Williams,  Ste 
vens,  Washburne,  Morrill,  Bingham,  Boutwell  and  Blow 
— 10. 


88  THE  JOURNAL  [88 

Nays — Messrs.  Grider  and  Rogers — 2, 

Absent — Messrs.  Fessenden,  Harris  and  Conkling — 3. 

So  the  section  proposed  by  Mr.  Binghani  was  adopted. 

The  sixth  section  was  read,  giving  Congress  power  to 
enforce  the  provisions  of  the  article. 

The  question  was  taken  upon  adopting  the  section,  and  it 
was  decided  in  the  affirmative,  yeas  10,  nays  2,  absent  3, 
as  follows:  • 

Yeas — Messrs.  Grimes,  Howard,  Johnson,  Williams,  Ste 
vens,  Washburne,  Morrill,  Binghani,  Boutwell  and  Blow 
— 10. 

Nays — Messrs.  Grider  and  Rogers — 2. 

Absent — Messrs.  Fessenden,  Harris  and  Conkling — 3. 

So  the  sixth  section  was  adopted. 

The  Committee  proceeded  to  consider  the  accompanying 
joint  resolution. 

Mr.  Morrill  submitted  the  following  additional  resolu 
tion: 

"  And  be  it  further  resolved,  That  when  any  state  lately 
in  insurrection  shall  have  adopted  Article  —  of  amendment 
to  the  Constitution  as  proposed  — ,  any  part  of  the  direct 
tax  under  the  act  of  August  5,  1861,  which  may  remain  due 
and  unpaid  in  such  state,  may  be  assumed  and  paid  by  such 
state;  and  the  payment  thereof,  upon  proper  assurances 
from  such  state  to  be  given  to  the  Secretary  of  the  Treas 
ury  of  the  United  States,  may  be  postponed  for  a  period  not 
exceeding  ten  years." 

Pending  which 

Mr.  Bm-gham  moved  to  amend  the  resolution  submitted 


THE  JOURNAL  89 

by  Mr.  Stevens  by  striking  out  after  the  enacting  clause  the; 
following  words : 

"  That  whenever  the  above  recited  amendment  shall  have 
become  part  of  the  Constitution,  and  any  state  lately  in  in 
surrection  shall  have  ratified  the  same,  and  shall  have  modi 
fied  its  constitution  and  laws  in  conformity  with  the  first 
section  thereof  " — 

And  inserting  in  lieu  thereof  the  following: 

"  That  whenever,  after  the  first  day  of  February,  1867, 
any  state  lately  in  insurrection  shall  have  adopted  this  ar 
ticle  of  amendment,  and  shall  have  conformed  its  constitu 
tion  thereto  and  to  the  constitution  and  laws  of  the  United 
States,  such  state  shall  be  entitled  to  representation  in  the 
Congress  of  the  United  States,  and  " 

Mr.  Conkling  at  this  period  of  the  session  entered  the 
Committee  room,  and  stated  that  he  had  been  unable  to  come 
earlier. 

After  some  discussion  upon  the  amendment  proposed  by 
Mr.  Bingham, 

On  motion  of  Mr.  Grimes  it  was 

Ordered,  That  when  the  Committee  adjourn  to-day  it  be 
to  meet  at  10  A.  M.  on  Monday  next. 

After  further  discussion, 

On  motion  of  Mr.  Conkling, 

The  Committee  adjourned. 

Washington,  April  23,  1866. 

The  Committee  met  pursuant  to  adjournment  (Mr.  John 
son  in  the  chair).  Absent,  Messrs.  Fessenden,  Harris  and 
Grider. 


90  THE  JOURNAL  [90 

The  Committee  resumed  the  consideration  of  the  joint 
resolution  pending  at  the  adjournment  on  Saturday. 

Mr.  Stevens  said  he  desired  to  withdraw  the  joint  reso 
lution  submitted  by  him  on  Saturday,  so  far  as  the  same  re 
lated  to  the  admission  of  the  states  lately  in  insurrection, 
for  the  purpose  of  submitting  a  bill  in  its  place — leaving  the 
proposed  amendment  to  the  Constitution  to  stand  by  itself, 
as  it  had  been  adopted  by  the  Committee. 

Mr.  Hoivard  moved  that  Mr.  Stevens  have  the  leave 
asked. 

The  motion  was  agreed  to,  and  the  joint  resolution  was; 
accordingly  withdrawn. 

Mr.  Stevens  submitted  the  following  bill  for  the  consid 
eration  of  the  Committee. 

A  Bill  to  provide  for  the  restoration  to  the  states  lately 
in  insurrection  of  their  full  political  rights. 

Whereas,  It  is  expedient  that  the  states  lately  in  insurrec 
tion  should,  at  the  earliest  day  consistent  with  the  future 
peace  and  safety  of  the  Union,  be  restored  to  full  participa 
tion  in  all  political  rights ; 

And,  whereas,  the  Congress  did,  by  joint  resolution,  pro 
pose  for  ratification  to  the  legislatures  of  the  several  states, 
as  an  amendment  to  the  Constitution  of  the  United  States, 
an  article  in  the  following  words,  to  wit : 

"  Article. 

"  Section  i.  No  discrimination  shall  be  made  by  any  State 
nor  by  the  United  States  as  to  the  civil  rights  of  persons 
because  of  race,  color  or  previous  condition  of  servitude. 

"  Sec.  2.  From  and  after  the  fourth  day  of  July  in  the 


THE  JOURNAL  gl 

year  1876  no  discrimination  shall  be  made  by  any  state  nor 
by  the  United  States,  as  to  the  enjoyment,  by  classes  of  per 
sons,  of  the  right  of  suffrage,  because  of  race,  color  or 
previous  condition  of  servitude. 

"  Sec.  3.  Until  the  fourth  day  of  July,  1876,  no  class  of 
persons,  as  to  the  right  of  any  of  whom  to  suffrage  dis 
crimination  shall  be  made  by  any  state,  because  of  race, 
color  or  previous  condition  of  servitude,  shall  be  included 
in  the  basis  of  representation. 

"  Sec.  4.  Debts  or  obligations  already  incurred  or  which 
may  hereafter  be  incurred  in  aid  of  insurrection  or  of  war 
against  the  Union,  and  claims  for  compensation  for  loss  of 
involuntary  service  or  labor,  shall  not  be  paid  by  any  state 
nor  by  the  United  States. 

"  Sec.  5.  No  state  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States;  nor  shall  any  state  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law;  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  pro 
tection  of  the  laws. 

"  Sec.  6.  The  Congress  shall  have  power  to  enforce  by 
appropriate  legislation  the  provisions  of  this  article." 
^*      Now,  therefore, 

Be  it  enacted,  by  the  Senate  and  House  of  Representai- 
tives  of  the  United  States  of  America  in  Congress  assem 
bled,  That  whenever  the  above  recited  amendment  shall 
have  become  part  of  the  Constitution,  and  any  state  lately  in 
insurrection  shall  have  ratified  the  same,  and  shall  have 
modified  its  constitution  and  laws  in  conformity  with  the 


0.2  THE  JOURNAL  [92 

first  section  thereof,  the  Senators  and  Representatives  from 
such  state,  if  found  duly  elected  and  qualified,  shall,  after 
having  taken  the  usual  oath  of  office,  be  admitted  into  Con 
gress  as  such;  Provided,  That  until  after  the  fourth  day  of 
July,  1876,  no  person  shall  be  eligible  to  either  branch  of 
the  National  Legislature  who  is  included  in  any  of  the  fol 
lowing  classes,  namely : 

First.  Persons  who,  having  been  officers  of  the  army  or 
navy  of  the  United  States,  or  having  been  members  of  the 
36th  Congress,  or  having  held  in  the  year  1860  seats  in  the 
Cabinet,  or  judicial  offices  under  the  United  States,  did 
afterwards  take  part  in  the  late  insurrection. 

Second.  Persons  who  have  been  civil  or  diplomatic  offi 
cers  of  the  so-called  confederate  government,  or  officers  of 
the  army  or  navy  of  said  government  above  the  rank  of 
colonel  in  the  army  and  of  lieutenant  in  the  navy. 

Third.  Persons  in  regard  to  whom  it  shall  appear  that 
they  have  treated  officers  or  soldiers  or  sailors  of  the  army 
or  navy  of  the  United  States,  of  whatever  race,  or  color, 
captured  during  the  late  civil  war,  otherwise  than  lawfully 
as  prisoners  of  war. 

Fourth.  Persons  in  regard  to  whom  it  shall  appear  that 
they  are  disloyal. 

Mr.  Bingham  moved  to  amend  by  striking  out  all  after 
the  enacting  clause  down  to  and  including  the  word  "  Pro 
vided,"  and  inserting  the  following : 

"  That  whenever  the  above  recited  amendment  shall  have 
been  ratified  in  good  faith  by  the  legislature  of  Tennessee; 
and  said  state  shall  have  conformed  her  laws  thereto,  said 


93]  THE  JOURNAL  93 

state  shall  be  entitled  to  representation  in  Congress,  and 
upon  the  ratification  in  good  faith  by  the  other  states  lately 
in  insurrection  of  the  foregoing  article  of  amendment  said 
states  shall  after  the  first  day  of  February,  1867,  be  entitled 
to  representation  in  Congress,  subject  to  the  following  con 
dition,  that  said  states  so  ratifying  said  amendment  shall 
conform  their  constitutions  and  laws  thereto;  Provided, 
however." 

The  question  was  taken  upon  the  amendment,  and  it  was 
decided  in  the  negative,  yeas  4,  nays  8,  absent  3,  as  follows : 

Yeas — Messrs.  Johnson,  Bingham,  Blow  and  Rogers — 4. 

Nays — Messrs.  Grimes,  Howard,  Williams,  Stevens, 
Washburne,  Morrill,  Conkling  and  Boutwell — 8. 

Absent — Messrs.  Fessenden,  Harris  and  Grider — 3. 

So  the  amendment  was  rejected. 

Mr.  Stevens  moved  to  amend  the  second  clause  of  excep 
tions  by  striking  out  the  words  "  civil  or." 

The  amendment  was  agreed  to. 

Mr.  Stevens  moved  to  further  amend  the  same  clause  by 
striking  out  the  word  "  lieutenant  "  and  inserting  the  word 
"  master." 

The  amendment  was  agreed  to. 

Mr.  Williams  moved  to  strike  out  the  fourth  clause  as  fol 
lows  : 

"  Fourth.  Persons  in  regard  to  whom  it  shall  appear  that 
they  are  disloyal." 

After  discussion, 

The  question  was  taken,  and  it  was  decided  in  the  affirma 
tive,  yeas  12,  nays  o,  absent  3,  as  follows: 


94  THE  JOURNAL  [94 

Yeas — Messrs.  Grimes,  Howard,  Johnson,  Williams,  Ste 
vens,  Washburne,  Morrill,  Bingham,  Conkling,  Boutwell, 
Blow  and  Rogers — 12. 

Nays — o. 

Absent — Messrs.  Fessenden,  Harris  and  Grider — 3. 

So  the  motion  to  strike  out  was  agreed  to. 

Mr,  Boutwell  moved  to  strike  out  all  after  the  words  "  in, 
any  of  the  following  classes,  namely,"  and  to  insert  in  lieu 
thereof  the  following : 

First.  The  President  and  Vice-President  of  the  Confed 
erate  States  of  America  so-called, — the  heads  of  depart 
ments  and  the  members  of  both  houses  of  the  Congress 
thereof. 

Second.  Those  who  in  other  countries  have  acted  as 
agents  of  the  Confederate  States  of  America,  so-called. 

Third.  Heads  of  departments  in  the  government  of  the 
United  States,  Judges  of  the  Courts  of  the  United  States, 
officers  of  the  army  and  navy  of  the  United  States,  and 
members  of  either  house  of  the  Congress  of  the  United 
States,  who  aided  the  late  rebellion. 

Fourth.  Those  who  acted  as  officers  of  the  Confederate 
States  of  America  so-called,  above  the  grade  of  colonel  in 
the  army  or  master  in  the  navy,  and  any  one  who  as  gov 
ernor  of  either  of  said  so-called  Confederate  States  gave* 
aid  or  comfort  to  the  rebellion. 

Fifth.  Those  who  have  treated  officers  or  soldiers  or 
sailors  of  the  army  or  navy  of  the  United  States,  captured 
during  the  late  war,  otherwise  than  lawfully  as  prisoners 
of  war." 


THE  JOURNAL  95 

After  discussion, 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  8,  nays  4,  absent  3,  as  follows : 

Yeas — Messrs.  Grimes,  Howard,  Williams,  Stevens, 
Washburne,  Morrill,  Conkling  and  Boutwell — 8. 

Nays — Messrs.  Johnson,  Bingham,  Blow  and  Rogers — 4. 

Absent — Messrs.  Fessenden,  Harris  and  Grider — 3. 

So  the  amendment  was  agreed  to. 

Mr.  Boutwell  moved  to  further  amend  by  striking  out 
after  the  words  "  Provided,  That,"  the  words  "  until  after 
the  fourth  day  of  July,  1876." 

After  discussion, 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  7,  nays  5,  absent  3,  as  follows: 

Yeas — Messrs.  Grimes,  Howard,  Stevens,  Washburne, 
Conkling,  Boutwell  and  Rogers — 7. 

Nays — Messrs.  Johnson,  Williams,  Morrill,  Bingham 
and  Blow — 5. 

Absent — Messrs.  Fessenden,  Harris  and  Grider — 3. 

So  the  amendment  was  agreed  to. 

Mr.  Morrill  moved  the  following  as  an  additional  section : 

"  Sec.  2.  And  be  it  further  enacted,  That  when  any  state* 
lately  in  insurrection  shall  have  ratified  the  foregoing  pro 
posed  amendment  to  the  Constitution,  any  part  of  the  direct 
tax  under  the  act  of  August  5,  1861,  which  may  remain  due 
and  unpaid  in  such  state,  may  be  assumed  and  paid  by  such 
state;  and  the  payment  thereof,  upon  proper  assurances 
from  such  state,  to  be  given  to  the  Secretary  of  the  Treas 
ury  of  the  United  States,  may  be  postponed  for  a  period 


96  THE  JOURNAL 

not  exceeding  ten  years  from  and  after  the  passage  of  this 
act" 

After  discussion, 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  n,  nays  i,  absent  3,  as  follows: 

Yeas — Messrs.  Grimes,  Howard,  Johnson,  Williams,  Ste 
vens,  Washburne,  Morrill,  Bingham,  Conkling,  Boutwell 
and  Blow — n. 

Nay — Mr.  Rogers — i. 

Absent — Messrs.  Fessenden,  Harris  and  Grider — 3. 

So  the  additional  section  was  adopted. 

Mr.  Washburne  moved  that  the  chairmen  of  the  Senate 
and  House  portions  of  the  joint  committee  (Messrs.  Fes 
senden  and  Stevens)  be  instructed  to  report  the  joint  reso 
lution  and  bill  agreed  upon  by  the  Committee  to  their  re 
spective  houses ;  and  that  they  ask  permission  to  submit  re 
ports  upon  the  same  at  some  future  time. 

Mr.  Grimes  moved  to  amend  the  motion  of  Mr.  Wash 
burne,  by  striking  out  the  last  clause  and  inserting  in  lieu 
thereof  the  following: 

"  And  that  they  be  instructed  to  prepare  reports  to  ac 
company  the  same." 

Mr.  Rogers  asked  leave  for  the  minority  of  the  Com 
mittee  to  prepare  and  submit  their  views  in  the  shape  of  re 
ports. 

Pending  which, 

Mr.  Conkling  moved  that  when  the  Committee  adjourn} 
to-day,  it  be  to  meet  on  Wednesday  next  at  iol/2  o'clock 
A.  M. 


97]  THE  JOURNAL  97 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  8,  nays  4,  absent  3,  as  follows : 

Yeas — Messrs.  Grimes,  Howard,  Johnson,  Williams, 
Morrill,  Conkling,  Boutwell  and  Blow — 8. 

Nays — Messrs.  Stevens,  Washburne,  Bingham  and  Rog 
ers — 4. 

Absent — Messrs.  Fessenden,  Harris  and  Grider — 3. 

So  the  motion  was  agreed  to. 

Mr.  Conkling  moved  that  the  Committee  now  adjourn. 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  8,  nays  4,  absent  3,  as  follows: 

Yeas — Messrs.  Grimes,  Howard,  Johnson,  Williams, 
Morril,  Conkling,  Boutwell  and  Blow — 8. 

Nays — Messrs.  Stevens,  Washburne,  Bingham  and  Rog 
ers — 4. 

Absent — Messrs.  Fessenden,  Harris  and  Grider — 3. 

So  the  motion  was  agreed  to,  and  the  Committee  accord 
ingly  adjourned. 

Washington,  April  25,  1866. 

The  Committee  met  pursuant  to  adjournment  (Mr.  John 
son  in  the  chair) ;  absent,  Messrs.  Fessenden  and  Wash 
burne. 

The  question  pending  at  the  adjournment  of  the  last 
meeting  was  the  motion  of  Mr.  Washburne  instructing  the 
chairmen  of  the  Senate  and  House  portions  of  the  joint 
committee  to  report  to  their  respective  houses  the  joint 
resolution  and  bill  agreed  upon  by  the  committee  at  its  last 
meeting,  and  to  ask  leave  to  submit  written  reports  at  some 
future  time  to  accompany  the  same. 


98  THE  JOURNAL  [98 

To  this  motion  Mr.  Grimes  had  moved  an  amendment, 
viz. :  to  strike  out  the  last  clause  and  to  insert  an  instruction 
to  prepare  reports  to  accompany  the  joint  resolution  and  bill 
when  reported. 

Mr.  Grimes  withdrew  his  amendment. 

The  question  recurred  upon  the  motion  of  Mr.  Wash- 
burne. 

Pending  which, 

Mr.  Conkling  moved  to  amend  the  bill  by  striking  out  the 
word  "  usual  "  before  the  words  "  oath  of  office,"  and  in 
serting  in  lieu  thereof  the  word  "  required." 

The  amendment  was  agreed  to. 

Mr.  Bingham  moved  further  to  amend  the  bill  by  striking 
out  the  word  "  oath  "  and  inserting  the  word  "  oaths." 

The  amendment  was  agreed  to. 

Mr.  Williams  moved  to  amend  the  joint  resolution  by 
striking  out  the  fifth  section  of  the  proposed  amendment  to 
the  Constitution,  as  follows : 

"  Section  5.  No  state  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the; 
United  States;  nor  shall  any  state  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law;  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protec 
tion  of  the  laws." 

After  discussion, 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  7,  nays  5,  absent  or  not  voting  3,  as  follows: 

Yeas — Messrs.  Harris,  Howard,  Johnson,  Williams, 
Grider,  Conkling  and  Boutwell — 7. 


99]  THE  JOURNAL  99 

Nays — Messrs.  Stevens,  Morrill,  Bingham,  Rogers  and 
Blow — 5. 

Absent  or  not  voting — Messrs.  Fessenden,  Grimes  and 
Washburne — 3 . 

So  the  amendment  was  agreed  to. 

The  question  recurred  upon  the  motion  of  Mr.  Wash 
burne  to  report  the  joint  resolution  and  bill  agreed  upon  to? 
the  two  houses,  etc. 

After  discussion, 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  7,  nays  6,  absent  2,  as  follows : 

Yeas — Messrs.  Grimes,  Harris,  Howard,  Williams,  Ste 
vens,  Morrill  and  Bingham — 7. 

Nays — Messrs.  Johnson,  Grider,  Conkling,  Boutwell, 
Blow  and  Rogers — 6. 

Absent — Messrs.  Fessenden  and  Washburne — 2. 

So  the  motion  was  agreed  to. 

Mr.  Bingham  submitted  for  adoption  by  the  Committee 
as  a  separate  article  of  amendment  to  the  Constitution,  the 
section  which  had  been  stricken  out  of  the  one  adopted  by 
the  Committee. 

After  discussion, 

The  question  was  taken,  and  it  was  decided  in  the  nega 
tive,  yeas  4,  nays  8,  absent  or  not  voting  3,  as  follows : 

Yeas — Messrs.  Johnson,  Bingham,  Grider  and  Rogers 
~4- 

Nays — Messrs.  Grimes,  Howard,  Williams,  Stevens, 
Morrill,  Conkling,  Boutwell  and  Blow — 8. 

Absent  or  not  voting — Messrs.  Fessenden,  Harris  and 
Washburne — 3. 


100  THE  JOURNAL  [IOO 

So  the  proposition  of  Mr.  Bingham  was  not  agreed  to. 

Mr.  Grider  gave  notice  that  at  the  proper  time  he  should 
submit  for  the  consideration  and  action  of  the  Committee 
the  following  resolution : 

Resolved,  That,  in  the  opinion  of  this  Committee,  the  peo 
ple  of  Tennessee  having  elected  according  to  law  loyal  men 
as  Senators  and  Representatives,  they  should  be  admitted 
to  seats  in  the  present  Congress,  upon  taking  the  usual  oath 
of  office. 

Mr.  Williams  moved  to  reconsider  the  vote  by  which  the} 
Committee  directed  the  joint  resolution  and  bill  adopted 
by  the  Committee  to  be  reported  to  the  two  houses  of  Con 
gress. 

After  discussion, 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  10,  nays  2,  absent  3,  as  follows : 

Yeas — Messrs.  Grimes,  Harris,  Johnson,  Williams, 
Grider,  Bingham,  Conkling,  Boutwell,  Blow  and  Rogers 
— 10. 

Nays — Messrs.  Howard  and  Stevens — 2. 

Absent — Messrs.  Fessenden,  Washburne  and  Morrill — 3. 

So  the  motion  to  reconsider  was  agreed  to. 

And  then,  on  motion  of  Mr.  Grimes, 

The  Committee  adjourned  till  Saturday  next,  at  iol/2 
o'clock  A.  M. 

Washington,  April  28,  1866. 

The  Committee  met  pursuant  to  adjournment;  all  the 
members  present. 

The  Chairman  said  that  the  vote  of  the  Committee  order- 


I0i]  THE  JOURNAL  IOi 

ing  the  joint  resolution  and  bill  agreed  upon  to  be  reported 
to  the  two  houses  having  been  reconsidered  at  the  last  meet 
ing,  the  Committee  would  resume  the  consideration  of  the 
same,  and  they  would  be  regarded  as  still  open  to  amend 
ment. 

Mr.  Stevens  moved  to  strike  out  all  of  Section  two  of 
the  proposed  amendment  to  the  Constitution  of  the  United 
States  as  follows : 

"  Sec.  2.  From  and  after  the  fourth  day  of  July,  in  the 
year  1876,  no  discrimination  shall  be  made  by  any  State, 
nor  by  the  United  States,  as  to  the  enjoyment  by  classes  of! 
persons  of  the  right  of  suffrage,  because  of  race,  color,  or 
previous  condition  of  servitude." 

And  the  following  at  the  beginning  of  section  three : 

"  Until  the  fourth  day  of  July,  1876." 

So  that  the  third  section  would  then  read, 

"  No  class  of  persons,  as  to  the  right  of  whom  to  suffrage! 
discrimination  shall  be  made  by  any  State  because  of  race, 
color  or  previous  condition  of  servitude,  shall  be  included  in 
the  basis  of  representation." 

After  discussion, 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  12,  nays  2,  not  voting  i,  as  follows: 

Yeas — Messrs.  Grimes,  Harris,  Johnson,  Williams,  Ste 
vens,  Morrill,  Grider,  Bingham,  Conkling,  Boutwell,  Blow 
and  Rogers — 12. 

Nays — Messrs.  Howard  and  Washburne — 2. 

Not  voting — The  Chairman — i. 

So  the  motion  to  strike  out  was  agreed  to. 


102  THE  JOURNAL  [IO2 

Mr.  Williams  moved  to  strike  out  what  had  been  section 
three,  and  to  insert  in  lieu  thereof  the  following: 

"  Representatives  shall  be  apportioned  among  the  several 
states  which  may  be  included  within  this  Union  according 
to  their  respective  numbers,  counting  the  whole  number  of 
persons  in  each  State  excluding  Indians  not  taxed.  But 
whenever  in  any  State  the  elective  franchise  shall  be  denied 
to  any  portion  of  its  male  citizens,  not  less  than  twenty- 
one  years  of  age,  or  in  any  way  abridged,  except  for  partici 
pation  in  rebellion  or  other  crime,  the  basis  of  representa-* 
tion  in  such  State  shall  be  reduced  in  the  proportion  which 
the  number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  not  less  than  twenty-one  years  of 
age." 

After  discussion, 

The  question  was  taken,  and  it  was  decided  in  the  affir*- 
mative,  yeas  12,  nays  3,  as  follows: 

Yeas — The  Chairman,  Messrs.  Grimes,  Harris,  Johnson, 
Williams,  Morrill,  Grider,  Bingham,  Conkling,  Boutwell, 
Blow  and  Rogers — 12. 

Nays — Messrs.  Howard,  Stevens  and  Washburne — 3. 

So  the  motion  of  Mr.  Williams  was  agreed  to. 

The  Committee  proceeded  to  consider  the  following  sec 
tion  : 

"  Sec.  4.  Debts  or  obligations  already  incurred  or  which 
may  hereafter  be  incurred  in  aid  of  insurrection  or  of  war 
against  the  Union,  and  claims  for  compensation  for  loss  of 
involuntary  service  or  labor,  shall  not  be  paid  by  any  State, 
nor  by  ihe  United  States." 


I03]  THE  JOURNAL 

Mr.  Rogers  moved  to  amend  by  striking  out  the  words 
"  by  any  State,  nor." 

The  question  was  taken,  and  it  was  decided  in  the  nega 
tive,  yeas  3,  nays  12,  as  follows : 

Yeas — Messrs.  Johnson,  Grider  and  Rogers — 3. 

Nays — The  Chairman,  Messrs.  Grimes,  Harris,  Howard, 
Williams,  Stevens,  Washburne,  Morrill,  Bingham,  Conk- 
ling,  Boutwell  and  Blow — 12. 

So  the  amendment  was  rejected. 

Mr.  Bingham  moved  to  change  the  phraseology  of  the 
section,  so  that  it  should  read, 

"  Neither  the  United  States  nor  any  State  shall  assume 
or  pay  any  debt  or  obligation  already  incurred,  or  which 
may  hereafter  be  incurred,  in  aid  of  insurrection,  or  of  war 
against  the  United  States,  or  any  claim  for  compensation 
for  loss  of  involuntary  service  or  labor." 

The  motion  was  agreed  to. 

Mr.  Boutwell  moved  to  insert  the  following  as  an  addi-i 
tional  section : 

"  Sec.  — .  The  President  and  Vice-President  of  the  late 
Confederate  States  of  America  so-called;  the  heads  of  de 
partments  thereof;  those  who  in  other  countries  acted  as 
agents  of  the  Confederate  States  of  America  so-called; 
those  who,  having  been  heads  of  departments  of  the  United 
States,  or  officers  of  the  army  or  navy  of  the  United  States, 
or  members  of  either  house  of  the  36th  Congress  of  the 
United  States,  afterwards  aided  in  the  late  rebellion ;  and 
any  one  who  as  governor  of  either  of  the  so-called  Con 
federate  States  gave  aid  or  comfort  to  the  late  rebellion, 


1 04  THE  JO  URNAL  [  l  o^ 

are  declared  to  be  forever  ineligible  to  any  office  under  the 
United  States." 

Mr.  Stevens  moved  to  amend  the  section  proposed  by  Mr. 
Boutwell  by  inserting  after  the  clause  relating  to  confed 
erate  agents  in  foreign  countries  the  following: 

"  officers  of  the  army  or  navy  of  the  Confederate  States 
of  America  so-called,  above  the  rank  of  colonel  in  the  army; 
or  master  in  the  navy." 

After  discussion, 

The  question  was  taken,  and  it  was  decided  in  the  nega 
tive,  yeas  3,  nays  12,  as  follows: 

Yeas — Messrs.  Stevens,  Washburne  and  Conkling — 3. 

Nays — The  Chairman,  Messrs.  Grimes,  Harris,  Howard, 
Johnson,  Williams,  Morrill,  Grider,  Bingham,  Boutwell, 
Blow  and  Rogers — 12. 

So  the  amendment  of  Mr.  Stevens  was  not  agreed  to*. 

The  question  was  then  taken  upon  the  section  proposed 
by  Mr.  Boutwell,  and  it  was  decided  in  the  negative,  yeas 
6,  nays  8,  not  voting  i,  as  follows: 

Yeas — Messrs.  Harris,  Stevens,  Washburne,  Morrill, 
Conkling  and  Boutwell — 6. 

Nays — The  Chairman,  Messrs.  Howard,  Johnson,  Wil 
liams,  Grider,  Bingham,  Blow  and  Rogers — 8. 

Not  voting — Mr.  Grimes — i. 

So  the  section  was  not  agreed  to. 

Mr.  Harris  moved  to  insert  the  following  as  an  additional 
section  to  follow  the  section  in  relation  to  representation : 

"  Sec.  — .  Until  the  fourth  day  of  July,  in  the  year  1870, 
all  persons  who  voluntarily  adhered  to  the  late  insurrection, 


THE  JOURNAL  IOS 

giving  it  aid  and  comfort,  shall  be  excluded  from  the  right 
to  vote  for  Representatives  in  Congress  and  for  electors  for 
President  and  Vice-President  of  the  United  States." 

After  discussion, 

The  question  was  taken,  and  it  was  decided  in  the  nega 
tive,  yeas  7,  nays  8,  as  follows : 

Yeas — Messrs.  Harris,  Howard,  Stevens,  Washburne, 
Morrill,  Conkling  and  Boutwell — 7. 

Nays — The  Chairman,  Messrs.  Grimes,  Johnson,  Wil 
liams,  Grider,  Bingham,  Blow  and  Rogers — 8. 

So  the  section  proposed  by  Mr.  Harris  was  not  agreed  to. 
Subsequently,  after  discussion, 

Mr.  Grimes  moved  to  reconsider  the  vote  by  which  the 
section  proposed  by  Mr.  Harris  was  rejected. 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  8,  nays  5,  not  voting  2,  as  follows : 

Yeas — The  Chairman,  Messrs.  Grimes,  Harris,  Howard, 
Stevens,  Morrill,  Conkling  and  Boutwell — 8. 

Nays — Messrs.  Johnson,  Grider,  Bingham,  Blow  and 
Rogers— 5. 

Not  voting — Messrs.  Williams  and  Washburne — 2. 

So  the  motion  to  reconsider  was  agreed  to. 

Mr.  Williams  said  that  upon  this  section  he  was  paired 
with  Mr.  Washburne  who  had  temporarily  left  the  com 
mittee  room. 

The  question  recurred  upon  agreeing  to  the  section  pro 
posed  by  Mr.  Harris. 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  7,  nays  6,  not  voting  2,  as  follows : 


106  THE  JOURNAL  [IO6 

Yeas — Messrs.  Grimes,  Harris,  Howard,  Stevens,  Mor- 
rill,  Conkling  and  Boutwell — 7. 

Nays — The  Chairman,  Messrs.  Johnson,  Grider,  Bing- 
ham,  Blow  and  Rogers — 6. 

Not  voting — Messrs.  Williams  and  Washburne — 2. 

So  the  section  was  adopted. 

The  section  granting  power' to  Congress  to  enforce  the 
provisions  of  the  article  was  adopted. 

Mr.  Bingham  moved  to  strike  out  the  first  section  of  the 
proposed  amendment  to  the  Constitution,  which  was  as  fol 
lows: 

"  Section  i.  No  discrimination  shall  be  made  by  any 
State,  or  by  the  United  States,  as  to  the  civil  rights  of  per 
sons,  because  of  race,  color  or  previous  condition  of  servi 
tude." 

and  to  insert  in  lieu  thereof  the  following: 

"  Sec.  i.  No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
I  United  States;  nor  shall  any  State  deprive  any  person  of 
life,  liberty,  or  property,  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protec 
tion  of  the  laws." 

After  discussion, 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  10,  nays  3,  not  voting  2,  as  follows: 

Yeas — Messrs.  Johnson,  Williams,  Stevens,  Washburne, 
Grider,  Bingham,  Conkling,  Boutwell,  Blow  and  Rogers 
— 10. 

Nays — Messrs.  Grimes,  Howard  and  Merrill — 3. 


THE  JOURNAL 

Not  voting — The  Chairman  and  Mr.  Harris — 2.  • 

So  the  motion  of  Mr.  Bingham  was  agreed  to. 

The  Committee  then  proceeded  to  the  consideration  of 
the  bill  to  provide  for  restoring  to  the  states  lately  in  insure 
rection  their  full  political  rights. 

Mr.  Boutwell  moved  that  that  portion  relating  to  certain! 
persons  to  be  excluded  from  office  be  considered  as  a  separ-1 
ate  bill. 

The  motion  was  agreed  to. 

The  preamble  was  modified,  in  so  far  as  it  recites  the  pro* 
posed  amendment  to  the  Constitution,  to  correspond  with 
the  action  of  the  Committee  this  morning. 

The  Committee  proceeded  to  consider  the  following  sec 
tion: 

"  Be  it  enacted,  etc.,  That  whenever  the  above  recited 
amendment  shall  have  become  part  of  the  Constitution  of 
the  United  States,  and  any  State  lately  in  insurrection  shall1 
have  ratified  the  same  and  shall  have  modified  its  constitu 
tion  and  laws  in  conformity  with  the  first  section  thereof, 
the  senators  and  representatives  from  such  state,  if  found 
duly  elected  and  qualified,  shall,  after  having  taken  the  re 
quired  oaths  of  office,  be  admitted  into  Congress  as  such." 

After  discussion, 

The  Chairman  moved  to  strike  out  the  word  "shall"  and 
insert  the  word  "  may  "  before  the  words  "  after  having 
taken,"  etc. 

The  motion  was  agreed  to. 

Mr.  Boutwell  moved  to  amend  the  section  by  striking  outi 
all  after  the  word  "  that  "  and  inserting  the  following: 


1 08  THE  JO  URNAL  [  l  og 

"  whenever  the  above  recited  amendment  shall  have  be 
come  a  part  of  the  Constitution  of  the  United  States  and 
whenever  either  Tennessee  or  Arkansas  shall  have  ratified1 
the  same,  and  shall  have  so  modified  its  constitution  and 
laws  as  to  make  them  conform  thereto,  and  shall  have 
provided  a  system  of  equal  suffrage  for  all  loyal  male  citi 
zens  within  its  jurisdiction  who  are  not  less  than  twenty- 
one  years  of  age,  the  Senators  and  Representatives  from 
such  state,  if  found  duly  elected  and  qualified,  shall,  after 
having  taken  the  required  oaths  of  office,  be  admitted  into) 
Congress  as  such;  provided,  that  nothing  contained  in  this* 
act  shall  be  so  construed  as  to  disfranchise  any  loyal  per 
son  now  entitled  to  vote." 

Mr.  Bingham  moved  to  amend  the  amendment  by  strik 
ing  out  all  the  first  part  to  and  including  the  words  "  the 
same,"  and  inserting  "  whenever  either  Tennessee  or  Ar 
kansas  shall  have  ratified  the  above  recited  amendment." 

After  discussion, 

The  question  was  taken  upon  the  amendment  to  the 
amendment,  and  it  was  decided  in  the  negative,  yeas  4, 
nays  7,  not  voting  4,  as  follows : 

Yeas — Messrs.  Johnson,  Williams,  Bingham  and  Blow 

—4- 

Nays — The  Chairman,  Messrs.  Grimes,  Howard,  Ste 
vens,  Morrill,  Grider  and  Rogers — 7. 

Not  voting — Messrs.  Harris,  Washburne,  Conkling  and 
Boutwell — 4. 

So  the  amendment  to  the  amendment  was  not  agreed  to>. 

The  question  was  then  taken  upon  the  amendment  of  Mr. 


I09]  THE  JOURNAL 

Boutwell,  and  it  was  decided  in  the  negative,  yeas  2,  nays 
9,  not  voting  4,  as  follows : 

Yeas — Messrs.  Johnson  and  Boutwell — 2. 

Nays — The  Chairman,  Messrs.  Grimes,  Howard,  Wil 
liams,  Stevens,  Grider,  Bingham,  Blow  and  Rogers — 9. 

Not  voting — Messrs.  Harris,  Washburne,  Morrill  and 
Conkling — 4. 

So  the  amendment  was  not  agreed  to. 

Mr.  Conkling  moved  to  amend  the  first  section  of  the  bill 
under  consideration  by  striking  out  the  words  "  with  the 
first  section  thereof,"  and  inserting  the  word  "  therewith  " 
in  lieu  thereof. 

The  amendment  was  agreed  to. 

Mr.  Williams  moved  to  amend  by  striking  out  all  after 
the  words  "That  whenever,"  and  inserting  the  following: 

"  any  one  of  the  states  lately  in  rebellion  shall  ratify  the 
above  recited  amendment  as  required  by  the  Constitution 
of  the  United  States,  the  Senators  and  Representatives  of 
such  state  shall,  after  the  4th  day  of  March,  1867,  if  found 
duly  elected  and  qualified  and  after  taking  the  required  oaths 
of  office,  be  admitted  into  Congress  as  such;  Provided  that 
Senators  and  Representatives  from  Tennessee  and  Ar 
kansas,  elected  and  qualified  as  aforesaid,  shall  be  admitted 
into  Congress  as  soon  as  said  states  respectively  shall  ratify 
said  amendment  as  aforesaid." 

After  discussion, 

The  question  was  taken,  and  it  was  decided  in  the  nega 
tive,  yeas  4,  nays  9,  not  voting  2,  as  follows : 

Yeas — Messrs.  Johnson,  Williams,  Bingham  and  Blow 
—4-  -I 


1 10  THE  JOURNAL  [IIO 

Nays — The  Chairman,  Messrs.  Grimes,  Howard,  Ste 
vens,  Morrill,  Grider,  Conkling,  Boutwell  and  Rogers — 9. 

Not  voting — Messrs.  Harris  and  Washburne — 2. 

So  the  amendment  was  not  agreed  to. 

The  first  section  as  amended  was  then  agreed  to. 

The  second  section  in  relation  to  the  direct  tax  was  agreed 
to. 

The  Committee  then  proceeded  to  consider  the  bill  de 
claring  certain  persons  ineligible  to  office. 

The  first  part  was  as  follows : 

"  Be  it  enacted,  etc.,  That  no  person  shall  be  eligible  to 
either  branch  of  the  National  Legislature  who  is  included 
in  any  of  the  following  classes,  namely," 

Mr.  Conkling  moved  to  amend  by  striking  out  the  words 
"  either  branch  of  the  National  Legislature,"  and  inserting 
the  words  "  any  office  under  the  government  of  the  United 
States." 

The  amendment  was  agreed  to. 

The  next  clause  was  as  follows : 

"  First.  The  President  and  Vice-President  of  the  Con 
federate  States  of  America  so-called,  the  beads  of  depart 
ments  and  members  of  both  houses  of  Congress  thereof." 

The  Chairman  moved  to  amend  by  striking  out  the  words} 
"  and  members  of  ,both  houses  of  Congress." 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  10,  nays  5,  as  follows: 

Yeas — The  Chairman,   Messrs.   Grimes,  Johnson,  Wil 
liams,  Morrill,  Grider,  Bingham,  Boutwell,  Blow  and 
ers — 10. 


m]  THE  JOURNAL  IIX 

Nays — Messrs.  Harris,  Howard,  Stevens,  Washburne 
and  Conkling — 5. 

So  the  amendment  was  agreed  to. 

The  next  clause  was  as  follows : 

"  Second.  Those  who  in  other  countries  acted  as  agents 
of  the  Confederate  States  of  America  so-called." 

Mr.  Howard  moved  to  strike  it  out. 

The  question  was  taken,  and  it  was  decided  in  the  nega 
tive,  yeas  3,  nays  12,  as  follows: 

Yeas — Messrs.  Howard,  Grider  and  Rogers — 3. 

Nays — The  Chairman,  Messrs.  Grimes,  Harris,  Johnson, 
Williams,  Stevens,  Washburne,  Morrill,  Bingham,  Conk- 
ling,  Boutwell  and  Blow — 12. 

So  the  motion  to  strike  out  was  not  agreed  to. 

The  next  clause  was  as  follows : 

"  Third.  Heads  of  departments  in  the  Government  of  the 
United  States,  officers  of  the  army  and  navy  of  the  United 
States,  Judges  of  the  Courts  of  the  United  States,  and  mem 
bers  of  either  house  of  the  36th  Congress  of  the  United 
States  who  aided  the  late  rebellion." 

Mr.  Grimes  moved  to  amend  by  inserting  before  the  word 
"  Judges,"  the  words  "  and  all  persons  educated  at  the 
naval  or  military  academy  of  the  United  States." 

The  amendment  was  agreed  to. 

The  next  clause  was  as  follows : 

"  Fourth.  Those  who  acted  as  officers  of  the  Confederate 
States  of  America  so-called,  above  the  grade  of  colonel  in 
the  army  or  master  in  the  navy;  and  any  one  who  as  gov 
ernor  of  either  of  the  so-called  Confederate  States  gave 
aid  or  comfort  to  the  rebellion." 


112  THE  JOURNAL  [II2 

Mr.  Grimes  movfed  to  amend  by  striking  out  the  words 
*  Those  who  acted  as  officers  of  the  Confederate  States  of 
America  so-called,  above  the  grade  of  colonel  in  the  army 
or  master  in  the  navy,  and." 

After  discussion, 

The  question  was  taken,  and  it  was  decided  in  the  nega 
tive,  yeas  4,  nays  n,  as  follows: 

Yeas — Messrs.  Grimes,  Johnson,  Grider  and  Rogers — 4. 

Nays — The  Chairman,  Messrs.  Harris,  Howard,  Wil 
liams,  Stevens,  Washburne,  Morrill,  Bingham,  Conkling, 
Boutwell  and  Blow — n. 

So  the  amendment  was  not  agreed  to. 

The  next  clause  was  agreed  to  as  follows : 

"  Fifth.  Those  who  treated  officers  or  soldiers  or 
sailors  of  the  army  or  navy  of  the  United  States,  captured 
during  the  late  war,  otherwise  than  lawfully  as  prisoners  of 
war." 

Mr.  Grider  submitted  the  following  resolutions : 

Resolved,  That,  in  the  opinion  of  this  Committee,  the 
people  of  Tennessee  having  elected  according  to  law  loyal 
men  as  Senators  and  Representatives,  they  should  be  ad 
mitted  to  seats  in  the  present  Congress  upon  taking  the 
usual  oath  of  office. 

Resolved,  further,  That  each  of  the  states  not  now  repre 
sented  should  be  allowed  representation  upon  the  same 
terms. 

Mr.  Grimes  moved  to  amend  the  first  resolution  by  add 
ing  thereto  the  following : 

"  Provided  they  comply  with  the  terms  agreed  upon  by 
the  Committee  this  session." 


H^]  THE  JOURNAL  Ir^ 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  9,  nays  4,  not  voting  2,  as  follows : 

Yeas — The  Chairman,  Messrs,  Grimes,  Harris,  Howard, 
Williams,  Stevens,  Morrill,  Bingham  and  Conkling — 9. 

Nays — Messrs.  Johnson,  Grider,  Blow  and  Rogers — 4. 

Not  voting — Messrs.  Washburne  and  Bout  well — 2. 

So  the  amendment  was  agreed  to. 

Mr.  Stevens  moved  to  lay  the  resolutions  on  the  table. 

The  question  was  taken,  and  it  was  decided  in  the  nega-* 
tive,  yeas  5,  nays  7,  not  voting  3,  as  follows : 

Yeas — Messrs.  Howard,  Williams,  Stevens,  Morrill  and 
Bingham — 5. 

Nays — Messrs.  Grimes,  Harris,  Johnson,  Grider,  Conk- 
ling,  Blow  and  Rogers — 7. 

Not  voting — The  Chairman,  Messrs.  Washburne  and 
Bout  well — 3. 

So  the  motion  to  lay  on  the  table  was  not  agreed  to. 

The  question  recurred  upon  agreeing  to  the  resolution 
as  amended. 

The  question  was  taken,  and  it  was  decided  in  the  nega-1 
tive,  yeas  2,  nays  10,  not  voting  3,  as  follows: 

Yeas — Messrs.  Grimes  and  Johnson — 2. 

Nays — Messrs.  Harris,  Howard,  Williams,  Stevens, 
Morrill,  Gnder,  Bingham,  Conkling,  Blow  and  Rogers — 10. 

Not  voting — The  Chairman,  Messrs.  Washburne  and 
Boutwell — 3. 

So  the  resolutions  were  not  adopted. 

Mr.  Stevens  moved  that  the  joint  resolution  and  bills 
adopted  by  the  Committee  to-day  be  reported  on  Monday^ 


H4  THE  JOURNAL  [II4 

next  to  the  two  houses  of  Congress,  and  that  leave  be  asked 
to  submit  at  some  future  time  reports  to  accompany  the 
same. 

Mr.  Boutwell  asked  that  a  separate  vote  be  taken  upon 
the  joint  resolution  and  bills;  which  was  ordered. 

The  first  question  was  upon  reporting  the  joint  resolution 
proposing  an  amendment  to  the  Constitution  of  the  United. 
States. 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  12,  nays  3,  as  follows: 

Yeas — The  Chairman,  Messrs.  Grimes,  Harris,  Howard, 
Williams,  Stevens,  Washburne,  Morrill,  Bingham,  Conk- 
ling,  Boutwell  and  Blow — 12. 

Nays — Messrs.  Johnson,  Grider  and  Rogers — 3. 

So  the  motion  to  report  the  joint  resolution  was  agreed  to. 

The  next  question  was  upon  reporting  the  bill  to  provide^ 
for  restoring  to  the  States  lately  in  insurrection  their  full 
political  rights. 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  12,  nays  3,  as  follows: 

Yeas — The  Chairman,  Messrs.  Grimes,  Harris,  Howard,. 
Williams,  Stevens,  Washburne,  Morrill,  Bingham,  Conk- 
ling,  Boutwell  and  Blow — 12. 

Nays — Messrs.  Johnson,  Grider  and  Rogers — 3. 

So  the  motion  was  agreed  to. 

The  next  question  was  upon  reporting  the  bill  declaring 
certain  persons  ineligible  to  office  under  the  government  of 
the  United  States. 

The  question  was  taken,  and  it  was  decided  in  the  affir 
mative,  yeas  12,  nays  3,  as  follows: 


II5]  THE  JOURNAL  !!$ 

Yeas — The  Chairman,  Messrs.  Grimes,  Harris,  Howard, 
Williams,  Stevens,  Washburne,  Morrill,  Bingham,  Conk- 
ling,  Boutwell  and  Blow — 12. 

Nays — Messrs.  Johnson,  Grider  and  Rogers — 3. 

So  the  motion  was  agreed  to. 

On  motion  of  Mr.  Rogers,  it  was 

Ordered,  That  the  minority  of  the  Committee  have  leave 
to  submit  minority  reports. 

On  motion  of  Mr.  Grimes,  it  was 

Ordered,  That  the  injunction  of  secrecy  be  removed,  sq 
far  as  relates  to  the  results  of  the  action  of  the  Committee 
at  this  session. 

On  motion  of  Mr.  Boutwell,  it  was 

Ordered,  That  the  stenographer  of  this  Committee  be 
authorized  to  furnish  to  the  agent  of  the  associated  press, 
and  the  correspondents  of  such  newspapers  as  may  apply 
to  him,  copies  of  the  joint  resolution  and  bills  adopted  by 
the  Committee  to-day,  after  the  same  shall  have  been  sub 
mitted  to  and  approved  by  the  Chairman. 

The  joint  resolution  and  bills  adopted  are  as  follows : 

A  joint  resolution  proposing  an  amendment  to  the  Con 
stitution  of  the  United  States. 

Be  it  resolved,  by  the  Senate  and  House  of  Representa 
tives  of  the  United  States  of  America  in  Congress  assem 
bled  (two-thirds  of  both  Houses  concurring),  That  the  fol 
lowing  article  be  proposed  to  the  Legislatures  of  the  sev 
eral  States  as  an  amendment  to  the  Constitution  of  the 
United  States,  which,  when  ratified  by  three-fourths  of  said 


Il6  THE  JOURNAL  [n6 

Legislatures,  shall  be  valid  as  part  of  the  Constitution, 
namely : 

Article  — 

Sec.  i.  No  state  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of 
the  United  States;  nor  shall  any  State  deprive  any  person} 
of  life,  liberty,  or  property  without  due  process  of  law;  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  pro 
tection  of  the  laws. 

Sec.  2.  Representatives  shall  be  apportioned  among  the 
several  States  which  may  be  included  within  this  Union  ac 
cording  to  their  respective  numbers,  counting  the  whole 
number  of  persons  in  each  State,  excluding  Indians  not 
taxed.  But  whenever  in  any  State  the  elective  franchise 
shall  be  denied  to  any  portion  of  its  male  citizens  not  less 
than  twenty-one  years  of  age,  or  in  any  way  abridged,  ex 
cept  for  participation  in  rebellion  or  other  crime,  the  basis 
of  representation  in  such  State  shall  be  reduced  in  the  pro 
portion  which  the  number  of  male  citizens  shall  bear  to  the 
whole  number  of  such  male  citizens  not  less  than  twenty- 
one  years  of  age. 

Sec.  3.  Until  the  4th  day  of  July,  in  the  year  1870,  all 
persons  who  voluntarily  adhered  to  the  late  insurrection, 
giving  it  aid  and  comfort,  shall  be  excluded  from  the  right 
to  vote  for  Representatives  in  Congress  and  for  electors 
for  President  and  Vice-President  of  the  United  States. 

Sec.  4.  Neither  the  United  States  nor  any  State  shall  as 
sume  or  pay  any  debt  or  obligation  already  incurred,  or 
which  may  Hereafter  be  incurred,  in  aid  of  insurrection  jbr: 


II7]  THE  JOURNAL  1 17 

of  war  against  the  United  States,  or  any  claim  for  compen 
sation  for  loss  of  involuntary  service  or  labor. 

Sec.  5.  The  Congress  shall  have  power  to  enforce  by  ap- 
>*  propriate  legislation  the  provisions  of  this  article. 

A  bill  to  provide  for  restoring  to  the  States  lately  in 
insurrection  their  full  political  rights. 

Whereas,  It  is  expedient  that  the  States  lately  in  insurrec 
tion  should  at  the  earliest  day  consistent  with  the  future} 
peace  and  safety  of  the  Union,  be  restored  to  full  participa 
tion  in  all  political  rights;  and  whereas  the  Congress  did, 
by  joint  resolution,  propose  for  ratification  to  the  Legis 
latures  of  the  several  States,  as  an  amendment  to  the  Con 
stitution  of  the  United  States,  an  article  in  the  following! 
words,  to  wit : 

"  Article— 

"  Sec.  i.  No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States;  nor  shall  any  State  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law;  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  pro 
tection  of  the  laws. 

"  Sec.  2.  Representatives  shall  be  apportioned  among  the 
several  States  which  may  be  included  within  this  Union, 
according  to  their  respective  numbers,  counting  the  whole* 
number  of  persons  in  each  State,  excluding  Indians  not 
taxed.  But  whenever,  in  any  State,  the  elective  franchise 
shall  be  denied  to  any  portion  of  its  male  citizens  not  less 
than  twenty-one  years  of  age,  or  in  any  way  abridged  ex- 


THE  JOURNAL  [ng 

cept  for  participation  in  rebellion  or  other  crime,  the  basis 
of  representation  in  such  State  shall  be  reduced  in  the  pro 
portion  which  the  number  of  such  male  citizens  shall  bear 
to  the  whole  number  of  male  citizens  not  less  than  twenty- 
one  years  of  age. 

"  Sec.  3.  Until  the  4th  day  of  July,  in  the  year  1870,  all 
persons  who  voluntarily  adhered  to  the  late  insurrection, 
giving  it  aid  and  comfort,  shall  be  excluded  from  the  right 
to  vote  for  Representatives  in  Congress,  and  for  electors 
for  President  and  Vice-President  of  the  United  States, 

"  Sec.  4.  Neither  the  United  States  nor  any  State  shall 
assume  or  pay  any  debt  or  obligation  already  incurred,  or 
which  may  hereafter  be  incurred,  in  aid  of  insurrection  or 
of  war  against  the  United  States,  or  any  claim  for  com 
pensation  for  loss  of  involuntary  service  or  labor. 

"  Sec.  5.  The  Congress  shall  have  power  to  enforce  by 
appropriate  legislation  the  provisions  of  this  article." 

Now,  therefore, 

Be  it  enacted,  by  the  Senate  and  House  of  Representa 
tives  of  the  United  States  of  America  in  Congress  assem 
bled,  That  whenever  the  above  recited  amendment  shall 
have  become  part  of  the  Constitution  of  the  United  States, 
and  any  State  lately  in  insurrection  shall  have  ratified  the 
same,  and  shall  have  modified  its  constitution  and  laws  in 
conformity  therewith,  the  Senators  and  Representatives 
from  such  State,  if  found  duly  elected  and  qualified,  may, 
after  having  taken  the  required  oaths  of  office,  be  admitted 
into  Congress  as  such. 

Sec.  2.  And  be  it  further  enacted,  That  when  any  State 


119]  THE  JOURNAL  IIOy 

lately  in  insurrection  shall  have  ratified  the  foregoing 
amendment  to  the  Constitution,  any  part  of  the  direct  tax 
under  the  act  of  August  5,  1861,  which  may  remain  due 
and  unpaid  in  such  State  may  be  assumed  and  paid  by  such 
State;  and  the  payment  thereof,  upon  proper  assurances 
from  such  State  to  be  given  to  the  Secretary  of  the  Treas 
ury  of  the  United  States,  may  be  postponed  for  a  period 
not  exceeding  ten  years  from  and  after  the  passage  of  this 
act. 

A  Bill  declaring  certain  persons  ineligible  to  office  under 
the  Government  of  the  United  States. 

Be  it  enacted,  by  the  Senate  and  House  of  Representa 
tives  of  the  United  States  of  America  in  Congress  assem 
bled,  That  no  person  shall  be  eligible  to  any  office  under 
the  Government  of  the  United  States  who  is  included  in 
any  of  the  following  classes,  namely : 

1.  The  President  and  Vice-President  of  the  Confederate 
States  of  America,  so-called,  and  the  heads  of  departments! 
thereof. 

2.  Those  who  in  other  countries  acted  as  agents  of  the 
Confederate  States  of  America,  so-called. 

3.  Heads  of  Departments  of  the  United  States,  officers 
of  the  Army  and  Navy  of  the  United  States,  and  all  per 
sons  educated  at  the  Military  or  Naval  Academy  of  the 
United  States,  judges  of  the  courts  of  the  United  States, 
and  members  of  either  House  of  the  Thirty-Sixth  Congress 
of  the  United  States  who  gave  aid  or  comfort  to  the  late 
rebellion. 

4.  Those  who  acted  as  officers  of  the  Confederate  States 


120  THE  JOURNAL  [I2O 

of  America,  so-called,  above  the  grade  of  colonel  in  the 
army  or  master  in  the  navy,  and  any  one  who,  as  Governor 
of  either  of  the  so-called  Confederate  States,  gave  aid  or 
comfort  to  the  rebellion. 

5.  Those  who  have  treated  officers  or  soldiers  or  sailors 
of  the  Army  or  Navy  of  the  United  States,  captured  dur^ 
ing  the  late  war,  otherwise  than  lawfully  as  prisoners  of 
war. 

And  then  on  motion  of  Mr.  Grimes, 
The  Committee  adjourned  to  meet  upon  the  call  of  its 
Chairman. 

Washington,  June  6,  1866. 

The  Committee  met  pursuant  to  the  call  of  its  Chairman ;, 
absent,  Messrs.  Washburne,  Blow,  Rogers,  Johnson,  Grider 
and  Conkling. 

The  Chairman  stated  that  he  had  called  the  Committee 
together  for  the  purpose  of  laying  before  them  a  report  he 
had  prepared  to  accompany  the  measures  which  at  the  last 
meeting  the  Committee  directed  to  be  reported  to  the  two 
houses  of  Congress. 

The  report  was  read  and  adopted. 

On  motion  of  Mr.  Howard, 

The  Chairmen  of  the  Senate  and  House  portions  of  the 
Joint  Committee  were  instructed  to  submit  the  report  just 
adopted  to  their  respective  houses. 

Adjourned  to  meet  on  call  of  the  Chairman. 
Attest 

(Sgd.)  WM.  BLAIR  LORD,  Clerk. 


I2I]  THE  JOURNAL  I2i 

SECOND  SESSION. 
IN  THE  HOUSE  OF  REPRESENTATIVES, 

December  4th,  1866. 

Resolved  (the  Senate  concurring),  That  the  Joint  Com 
mittee  of  Fifteen  on  Reconstruction,  appointed  during  the 
last  session  of  Congress,  shall  be  reappointed  under  the 
same  rules  and  regulations  as  then  existed,  and  that  all 
the  documents  and  resolutions  which  were  referred  then  be 
now  considered  as  referred  to  them  anew. 

Attest 

EDWD.  MCPHERSON,  Clerk. 

IN  THE  SENATE  OF  THE  UNITED  STATES, 

December  5,  1866. 

Resolved,  That  the  Senate  concur  in  the  foregoing  reso 
lution  of  the  House  of  Representatives,  relative  to  the  re- 
appointment  of  the  Joint  Committee  of  Fifteen  on  Recon 
struction. 

Attest 

J.  W.  FORNEY,  Secretary. 
by  W.  J.  MCDONALD,  Chief  Clerk. 

OFFICE  HOUSE  OF  REPRESENTATIVES  U.  S., 

February  i5th,  1867. 

I  certify  that  the  foregoing  is  a  true  copy  of  the  original 
now  on  file  in  this  office. 

Attest 

EDWD.  MCPHERSON,  Clerk. 


122  THE  JOURNAL  [I22 

Members  on  the  part  of  the  Senate. 
Mr.  William  P.  Fessenden  of  Maine. 
"     James  W.  Grimes,         "  Iowa. 
"     Ira  Harris,  "  New  York. 

'*     Jacob  M.  Howard,        "  Michigan. 
"     Reverdy  Johnson,         "  Maryland, 
and  "     George  H.  Williams,    "  Oregon. 

Members  on  the  part  of  the  House  of  Rep's. 
Mr.  Thaddeus  Stevens,        of  Penn'a. 
"     John  F.  Farnsworth,    "  Illinois,    vice  Mr. 

Washburne  excused. 
"     Justin  S.  Morrill,  "  Vermont. 

"     Elijah  Hise,  "  Kentucky,   vice 

Mr.  Grider  deceased. 
"     John  A.  Bingham,         "  Ohio. 
"     Roscoe  Conkling,          "  New  York. 
"     George  S.  Boutwell,     "  Mass. 
"     Henry  T.  Blow,  "  Missouri, 

and  "     Andrew  J.  Rogers,        "  New  Jersey. 

Washington,  Feb.  2,  1867. 

The  Committee  met  on  call  of  the  Chairman  at  Senate 
Committee  Room  on  the  Pacific  Railroad.  Present,  Mr. 
Fessenden  (Chairman)  and  the  entire  Committee. 

On  motion  of  Mr.  Stevens,  House  Bill  (Substitute  for 
House  Bill  No.  543)  was  read,  when, 

On  motion  of  Mr.  Bingham,  the  original  Bill  was  also 
read.  After  reference  had  been  made  to  both  bills,  Mr. 
Stevens  submitted  the  following  resolution : 


THE  JOURNAL 

"  That  the  States  lately  in  Rebellion  shall  be  reconstructed 
upon  the  principle  of  granting  them  enabling  Acts  to  form 
their  State  Constitutions,"  which,  after  some  discussion, 
was  modified  by  him  on  leave  as  follows : 

"That  the  States  lately  in  Rebellion  shall  be  reconstructed 
upon  the  principle,  "  providing  by  Act  of.  Congress  that  they 
may  form  State  Constitutions  and  Governments" 

The  discussion  upon  this  motion  was  continued  by 
Messrs.  Stevens,  Howard,  Bingham,  Conkling,  Johnson, 
Williams,  Farnsworth  and  Boutwell,  during  which  time, 
Mr.  Bingham  asked  leave  to  amend  the  original  House  Bill 
No.  543  as  follows,  add  after  word  "  therewith  "  the  fol 
lowing,  "  And  shall  have  secured  impartial  suffrage  to  the 
male  citizens  of  the  U.  S.  of  full  age  resident  therein,"  the 
section  amended  reading  as  follows: 

"  Be  it  enacted,  by  the  Senate  and  House  of  Representa 
tives  of  the  United  States  of  America  in  Congress  assem 
bled,  That  whenever  the  above  recited  amendment  shall 
have  become  part  of  the  Constitution  of  the  United  States, 
and  any  State  lately  in  insurrection  shall  have  ratified  the 
same,  and  shall  have  modified  its  constitution  and  laws  in 
conformity  therewith,  and  shall  have  secured  impartial  suf 
frage  to  the  male  citizens  of  the  United  States,  of  full  age 
resident  therein,  the  senators  and  representatives  from  such 
State,  if  found  duly  elected  and  qualified,  may,  after  havi'ng 
taken  the  required  oaths  of  office,  be  admitted  into  Congress 
as  such. 

Pending  discussion  of  Mr.  Stevens'  Resolution,  it  being 
near  12  o'clock, 


124  THE  J°URNAL  [124 

On  motion  of  Mr.  Howard,  the  Committee  adjourned  to 
meet  on  Wednesday  morning  next  at  10  o'clock. 

Wednesday,  Feb.  6,  1867. 

The  Committee  met  pursuant  to  adjournment.  Present, 
The  Chairman,  Messrs.  Grimes,  Harris,  Howard,  Johnson, 
Williams,  Stevens,  Farnsworth,  Morrill,  Bingham,  Conk- 
ling,  Boutwell  and  Blow. 

Absent,  Messrs.  Hise  and  Rogers. 

On  motion  of  the  Chairman,  Geo.  A.  Mark  was  appointed 
as  clerk  to  the  Committee. 

On  motion  of  the  Chairman,  it  was  agreed  that  the  pro 
ceedings  of  the  Committee  should  be  considered  as  secret 
and  confidential. 

Mr.  Conkling  moved  that  the  further  consideration  of 
pending  resolution  be  postponed,  and  Senate  Bill  564  be 
taken  up. 

The  motion  was  agreed  to. 

After  reading  of  S.  B.  564  J  by  the  Chairman,  Mr.  Conk- 
ling  presented  the  same  with  amendments. 

The  Committee  then  proceeded  to  the  consideration  of 
the  preamble,  and  the  several  sections  of  the  bill. 

Mr.  Conkling  moved  to  amend  the  preamble,  by  inserting 
after  the  word  "  Congress,"  in  the  fourth  line,  "  and  with 
out  the  sanction  of  the  people. " 

The  amendment  was  agreed  to. 

f1  This  was  the  number  of  a  bill  which  became  the  Reconstruction 
Act  of  March  2,  1867.  For  the  language  of  the  bill  as  introduced,  see 
infra,  ch.  viii. — B.  B.  Kendrick.] 


THE  JOURNAL 

It  was  also  agreed  to  strike  out  in  the  fifth  line  the  words 
"  and  therefore  are  of  no  constitutional  validity." 

Mr.  Farnsworth  moved  to  insert  after  the  word 
"whereas"  the  words  "  said  pretended  governments,"  strik 
ing  out  down  to  the  word,  "  afford,"  in  the  seventh  line,  so 
that  it  would  read,  "  and  whereas  said  pretended  govern 
ments  afford,  etc." 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  affirmative,  yeas  8,  nays  5,  absent  2. 

Yeas — The  Chairman,  Messrs.  Grimes,  Harris,  Johnson, 
Farnsworth,  Morrill,  Bingham  and  Blow — 8. 

Nays — Messrs.  Howard,  Williams,  Stevens,  Conkling 
and  Bout  well — 5. 

Absent — Messrs.  Rogers  and  Hise — 2. 

So  the  amendment  was  agreed  to. 

Mr.  Johnson  moved  to  further  amend,  by  striking  out  in 
the  eigth  line  the  words,  "  but  countenance  and  encourage 
lawlessness  and  crime." 

The  amendment  was  not  agreed  to. 

In  the  eleventh  line  it  was  agreed  to  amend  by  striking 
out  the  word  "  formed,"  and  inserting  the  word  "estab 
lished." 

Mr.  Bingham  offered  the  following  as  a  substitute  for  the 
preamble,  viz. : 

"  Whereas,  It  is  necessary  that  peace  and  good  order 
should  be  enforced  in  the  several  states  of  Virginia,  North 
Carolina,  South  Carolina,  Georgia,  Mississippi,  Alabama, 
Louisiana,  Florida,  Texas  and  Arkansas,  lately  in  rebellion, 
until  said  states  shall  be  fully  restored  to  their  constitutional 
relations  to  the  Government  of  the  United  States." 


126  THE  JOURNAL  [I26 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  negative,  yeas  4,  nays  9,  absent  2. 

Yeas — Messrs.  Grimes,  Johnson,  Bingham  and  Blow — 4. 

Nays — The  Chairman,  Messrs.  Harris,  Howard,  Wil 
liams,  Stevens,  Farnsworth,  Morrill,  Conkling  and  Bout- 
well — 9. 

Absent — Messrs.  Rogers  and  Hise — 2. 

So  the  substitute  of  Mr.  Bingham  wras  not  agreed  to. 

The  Committee  next  proceeded  to  the  consideration  of 
the  first  section,  amended  by  Mr.  Conkling,  so  that  after 
the  enacting  clause,  it  should  read  as  follows: 

"  That  said  so-called  states  shall  be  divided  into  military 
districts  and  made  subject  to  the  military  authority  of  the 
United  States  as  hereinafter  prescribed,  and  for  that  pur 
pose  Virginia  shall  constitute  the  first  district ;  North  Caro 
lina  and  South  Carolina  the  second  district ;  Georgia,  Ala 
bama  and  Florida  the  third  district;  Mississippi  and  Ar 
kansas  the  fourth  district;  Texas  and  Louisiana  the  fifth 
district." 

Mr.  Bingham  moved  to  amend  the  section  as  amended 
by  substituting  after  the  enacting  clause  the  following: 

"  That  said  states  be  divided  into  five  military  districts 
as  follows,"  etc. 

The  question  was  taken  by  yeas  and  nays,  and  it  was  de 
cided  in  the  negative,  yeas  2,  nays  9,  absent  or  not  voting  4. 

Yeas — Messrs.  Johnson  and  Bingham — 2. 

Nays — The  Chairman,  Messrs.  Harris,  Howard,  Ste 
vens,  Farnsworth,  Morrill,  Conkling,  Boutwell  and  Blow 


JOURNAL  I2j 

Absent  or  not  voting — Messrs.  Grimes,  Williams,  Rogers 
and  Hise — 4. 

So  the  amendment  of  Mr.  Bingham  was  not  agreed  to. 

Mr.  Bingham  moved  to  amend  by  striking  out  in  the  third 
line  the  word,  "  so-called." 

The  amendment  was  not  agreed  to. 

The  question  then  recurred  upon  the  adoption  of  the  sec 
tion  as  amended  by  Mr.  Conkling, 

And  the  section  was  adopted. 

The  amendments  to  the  second  section  submitted  by  Mr. 
Conklingi  were  agreed  to  and  the  section  read  as  follows : 

"  Sec.  2.  And  be  it  further  enacted,  That  it  shall  be  the 
duty  of  the  General  of  the  army,  under  the  authority  of  the 
President,  to  assign  to  the  command  of  each  of  said  dis 
tricts  an  officer  of  the  regular  army,  not  below  the  rank  of 
brigadier-general,  and  to  detail  a  sufficient  military  force  to 
enable  such  officer  to  perform  his  duties  and  enforce  his  au 
thority  within  the  district  to  which  he  is  assigned." 

The  third  section  was  then  taken  up,  and  after  discussion, 

Mr.  Harris  moved  to  amend  by  striking  out  in  the  sixth 
line  the  word  "  local  "  and  insert  the  word  "  civil." 

The  amendment  was  agreed  to. 

Mr.  Bingham  moved  to  amend  by  striking  out  in  the  sec 
ond  and  third  lines  the  words,  "  peaceable  and  law-abiding." 

The  amendment  was  agreed  to. 

Mr.  Bingham  moved  further  to  amend  by  inserting  in 
line  nine,  after  the  word  "  tribunals,"  the  words  "  in  the 
mode  prescribed  by  existing  laws  for  courts-martial." 

The  amendment  was  not  agreed  to. 


128  THE  JOURNAL  [I2g 

Mr.  Bingham  moved  to  amend  by  inserting  after  the  word 
"  all,"  in  the  eleventh  line,  the  word  "  local." 

The  amendment  was  not  agreed  to. 

And  the  section  as  amended  was  then  adopted. 

The  amendments  to  section  four  submitted  by  Mr.  Conk- 
ling  were  agreed  to,  and  the  section  read  as  follows : 

"  Sec.  4.  And  be  it  further  enacted,  That  courts  and  judi 
cial  officers  of  the  United  States  shall  not  issue  writs  of 
habeas  corpus  in  behalf  of  persons  in  military  custody,  un 
less  some  commissioned  officer  on  duty  in  the  district) 
wherein  the  person  is  detained  shall  indorse  upon  said  peti 
tion  a  statement  certifying,  upon  honor,  that  he  has  knowl 
edge,  or  information,  as  to  the  cause  and  circumstance  of! 
the  alleged  detention,  and  that  he  believes  the  same  to  be 
wrongful;  and  further  that  he  believes  that  the  indorsed 
petition  is  preferred  in  good  faith,  and  in  furtherance  of 
justice,  and  not  to  hinder  or  delay  the  punishment  of  crime. 
All  persons  put  under  military  arrest  by  virtue  of  this  act 
shall  be  tried  without  unnecessary  delay,  and  no  cruel  or 
unusual  punishment  shall  be  inflicted." 

And  the  section  as  amended  was  adopted. 

The  amendments  to  Section  five,  as  proposed  by  Mr. 
Conkling  were  agreed  to,  and  it  then  read  as  follows : 

"  Sec.  5.  And  be  it  further  enacted,  That  no  sentence  of 
any  military  commission  or  tribunal  hereby  authorized,  af 
fecting  the  life  or  liberty  of  any  person,  shall  be  executed 
until  it  is  approved  by  the  officer  in  command  of  the  dis 
trict,  and  the  laws  and  regulations  for  the  government  of 
the  army  shall  not  be  affected  by  this  act,  except  in  so  far 
as  they  conflict  with  its  provisions." 


129]  THE  JOURNAL  I2g 

And  the  section  was  adopted  as  amended. 

Mr.  Howard  moved  to  further  amend  the  second  section, 
by  striking  out  in  the  second  and  third  lines,  the  words, 
"  under  the  authority  of  the  President." 

After  discussion,  the  amendment  of  Mr.  Howard  was 
agreed  to. 

Mr.  Harris  moved  that  the  Chairmen  of  the  Senate  and 
House  portions  of  the  Committee  report  the  bill  to  their 
respective  bodies. 

The  motion  was  not  agreed  to. 

It  was  then  moved  that  Mr.  Stevens  report  the  bill  as 
amended  to  the  House. 

The  motion  was  agreed  to. 

Mr.  Bingham  moved  to  report  back  to  the  House  the  bill 
previously  reported. 

The  motion  was  not  agreed  to. 

After  discussion,  the  Committee  adjourned  to  meet  on, 
Saturday  next  at  10  o'clock. 

Saturday,  February  9,  1867. 
The  Committee  met  pursuant  to  adjournment. 
Present,    The   Chairman,    Messrs.    Williams,    Bingham, 
Boutwell  and  Blow. 

A  quorum  not  being  present,  the  Committee  adjourned 
to  meet  on  call  of  the  Chairman. 

GEORGE  A.  MARK,  Clerk. 


J 


PART  II 

THE  HISTORY  OF  THE  JOINT  COMMITTEE 
ON  RECONSTRUCTION 


CHAPTER  I 
ORIGIN  OF  THE  COMMITTEE 

So  long  as  the  Civil  War  continued,  the  interest  of  people 
and  politicians  in  the  North  was  directed  almost  entirely 
toward  the  movements  of  the  Union  armies  in  their  contests 
with  those  of  the  Confederacy.  But  it  was  realized  by 
the  thoughtful  that  the  question  of  restoring  the  seceded 
states  to  their  places  in  the  Union  must  be  met  so  soon  as 
the  authority  of  the  United  States  should  again  be  recog 
nized  throughout  their  territory.  Certain  members  of  Con 
gress,  under  the  leadership  of  Representative  Henry  Winter 
Davis,  of  Maryland,  and  Senator  Benjamin  Wade,  of  Ohio, 
succeeded  in  1864  in  passing  a  bill,  in  which  the  condi 
tions  whereby  the  rebellious  states  might  be  readmitted, 
were  defined.  Lincoln,  however,  refused  to  commit  him 
self  to  any  general  plan  of  reconstruction,  but  thought  it 
best  to  act  separately  on  each  state  according  to  the  condi 
tions  existing  in  it.  In  the  case  of  Louisiana x  he  had  caused 
to  be  established  a  government  based  on  the  suffrage  of  the 
loyal  voters,  who  constituted  but  little  more  than  ten  per 
cent  of  the  voting  population  of  1860.  Though  he  recog 
nized  this  government  as  legal  and  in  proper  relation  to  the 
executive  department  of  the  United  States  Government,  it 
was  not  so  recognized  by  the  legislative  department,  and 
some  of  the  more  radical  Congressmen  referred  to  it  de 
risively  as  the  President's  "  ten  per  cent "  government. 

1  Likewise   Arkansas.     The   military  government  in  Tennessee   and 
the  Peirpoint  government  in  Virginia  were  of  a  different  character. 

133]  133 


0 


HISTORY  OF  THE  COMMITTEE 

Just  what  the  attitude  of  the  country  toward  President 
Lincoln's  attempts  at  reconstruction  in  Louisiana  and  else 
where  was,  it  is  difficult  to  say.  Certainly  the  protest  of 
Wade  and  Davis  against  Lincoln's  pocket  veto  of  their 
bill  met  with  no  marked  public  response,  but  the  fact  must 
not  be  lost  sight  of  that  neither  Wade  nor  Davis  had  any 
great  amount  of  popular  following,  while  Lincoln  was  be 
coming  already  something  of  a  popular  idol.  Therefore, 
the  indorsement  of  his  policy  and  his  unanimous  renomina- 
tion  by  the  Union  party  in  1864  does  not  imply  that  his  re 
construction  policy  was  approved,  or  that  the  Wade-Davis 
bill  was  opposed  either  by  the  politicians  or  by  the  rank  and 
file  of  the  Republican  electorate.  Hence,  during  the  war, 
no  theory  of  reconstruction  was  enacted  into  law,  and  of 
so  little  consequence  was  Lincoln's  actual  reconstruction  in 
a  few  of  the  states,  that  the  whole  discussion  of  the  ques 
tion  remained,  until  the  death  of  Lincoln,  of  little  import 
ance.1 

As  the  end  of  Lincoln's  administration  marked  the  close 
of  the  war,  so  the  beginning  of  Johnson's  ushered  in  recon 
struction.  The  ideas  of  the  two  men  regarding  the  status 
of  the  seceded  states  were  identical.  Hence,  within  a  few 
weeks  after  becoming  President,  Johnson  began  to  carry 
forward  the  work  of  reconstruction  along  the  lines  laid 
down  by  his  predecessor.  He  recognized  as  regular  those 
state  organizations  that  had  been  established  during  the 
war,  and  appointed  provisional  governors  in  the  states 
where  no  such  organizations  existed.  At  the  direction  of 
the  President,  each  of  these  provisional  governors  called  a 
convention  for  the  purpose  of  creating  a  permanent  govern 
ment  in  harmony  with  that  of  the  United  States.  To  the 

1  Rhodes,  History  of  the  United  States,  vol.  iv,  pp.  484-486 ;  Dunning, 
Essays  on  Civil  War  and  Reconstruction,  pp.  67-70,  76-78. 


ORIGIN  OF  THE  COMMITTEE 

conventions  which  assembled,  Johnson  cannot  be  said  to 
have  given  definite  instructions,  but  he  did  let  it  be  under 
stood  that  the  executive  department  of  the  Federal  Govern 
ment,  while  leaving  the  franchise  in  the  hands  of  the  whites, 
desired  that  at  least  three  conditions  be  complied  with,  viz., 
the  ratification  of  the  thirteenth  amendment  abolishing  slav 
ery,  the  repudiation  of  the  war  debts,  and  a  declaration  that 
the  ordinances  of  secession  were  null  and  void  from  the  be 
ginning. 

During  the  summer  and  fall  of  1865,  most  of  these  con 
ventions  succeeded  in  creating  new  state  governments,  state 
officers  were  elected,  and  in  some  cases  senators  and  repre 
sentatives  to  Congress  were  chosen.  Thus,  by  the  time 
Congress  met  on  December  4,  1865,  the  process  of  restora 
tion  was  from  the  standpoint  of  the  executive  well-nigh 
complete.1  There  is  little  doubt  that  the  majority  of  the 
people  in  the  North  were  in  sympathy  with  the  President's 
plan  of  restoration.  Party  conventions,  Democratic  and 
Union,  in  nearly  every  state  endorsed  it.2  Few  if  any 
newspapers  opposed  it,  though  a  certain  element  of  the 
press,  like  the  New  York  Tribune,  Harper's  Weekly  and 
the  Nation,  advocated  making  negro  suffrage  a  fourth  con 
dition  precedent  to  readmission  of  the  seceded  states.3 

1  For  discussion  of  Johnson's  policy  of  reconstruction  and  the  process 
of  its  accomplishment,  see  Dunning,  Reconstruction,  Political  and  Eco 
nomic,  chap,  iii ;  also  Essays,  pp.  78-84,  103,  104:  Rhodes,  vol.  v,  chap. 

XXX. 

2  Rhodes,  vol.  v,  pp.  533,  534. 

3  The  early  success  of  the  President's  policy  proved  to  be  one  element 
at  least  in  its  later  weakness.     Its  hearty  approval  by  the  Democrats 
was  sufficient  to  cause  many  Republicans  to  view  it  with   suspicion. 
Henry  J.  Raymond,  editor  of  the  Republican  New  York  Times,  de 
clared  that  the  majority  of  Union  Congressmen  would  have  supported 
the  President  had  the  Democrats  opposed  him.     See  Elaine,   Twenty 
Years  of  Congress,  vol.  ii. 


HISTORY  OF  THE  COMMITTEE  [^ 

But  there  was  opposition  to  the  President's  policy,  and  it 
came  from  a  source  where  it  was  most  likely  to  cause  trouble 
— the  radical  members  of  Congress.  Several  reasons,  ex 
planatory  of  this  opposition,  may  be  stated.  Of  prime  im- 
»  portance  among  these  were^  party  considerations.  Every 
I  Republican  politician  believed  that  the  Democrats  in  the 
South,  upon  the  restoration  of  their  states,  would  renew 
their  ancient  party  affiliations  with  their  friends  in  the 
North.  He  also  believed  that  since  negroes  in  the  South 
were  not  allowed  to  vote,  all  the  southern  Congressmen 
would  belong  to  the  Democratic  party.  He  therefore  de 
manded  that  either  the  negroes  be  given  the  franchise, 
thereby  dividing  the  southern  delegation  and  securing  the 
election  of  a  fair  number  of  Republicans;  or  failing  that, 
that  the  negroes  be  excluded  from  the  basis  of  representa 
tion.1  A  second  reason  for  Congressional  opposition  is  to 
be  found  in  the  prevalence  of  the  feeling  that  the  legisla 
tive  branch  of  the  government  should  resume  that  super 
iority  which  during  the  war  it  had  lost  to  the  executive.2 
Third,  among  most  Congressmen  there  was  a  sincere  or 
pretended  affection  for  the  negroes  in  the  South,  and  it 
was  believed  that  unless  something  else  be  done  for  their 
:  security,  they  would  be  reduced  to  a  condition  bordering  on 
slavery.  Fourth,  there  was  a  determination  on  the  part  of 
some  of  the  more  statesmanlike  members  of  Congress,  that 
the  Federal  Government  should  now  be  strengthened  by 

1  See  speech  by  Thaddeus  Stevens,  December  18,  1865,  Globe,  ist  ses 
sion,  39th  Congress,  pp.  72-75. 

8  See  Globe,  ist  session,  39th  Congress,  p.  27,  for  Senator  Fessenden's 
speech  on  this  question.  Among  other  things  he  said :  "  In  all  coun 
tries,  in  a  time  of  extreme  peril,  extreme  and  somewhat  questionable 
measures  are  inevitable,  but  in  time  of  peace,  when  we  live  under  a 
written  constitution  it  is  our  duty  to  come  back  as  fast  as  possible;  to 
forget  if  necessary  any  precedent  which  might,  if  made  in  times  like; 
these,  have  occasioned  very  serious  difficulty  and  trouble." 


ORIGIN  OF  THE  COMMITTEE 

putting  in  its  keeping  the  power  to  enforce  throughout  the 
Union  the  bill  of  rights.1  Fifth,  it  cannot  be  denied  that 
some  of  the  opposition  to  the  President's  liberal  policy  was 
due  to  hatred  of  the  South.  There  was  a  class  of  public 
men  who  were  captious,  exacting,  and  implacable,  not  so 
much  from  devotion  to  any  principle  as  from  original  bent. 
There  was  no  end  to  the  requirements  they  would  have  im 
posed.  They  dealt  with  the  whole  business  in  the  mood  of 
a  Shylock  and  seem  to  have  desired  principally  to  u  feed 
fat  the  ancient  grudge."  2 

For  these  reasons,  as  the  time  for  the  meeting  of  Con 
gress  approached,  it  became  more  and  more  evident  that  the 
radicals3  would  not  adopt  the  policy  of  the  President;  but 
there  was  considerable  doubt  as  to  whether  they  would  be 
able  to  carry  with  them,  in  their  opposition  to  Johnson,  a 
majority  of  the  members  of  Congress.   At  this  time,  Decem 
ber  4,  1865,  the  President  was  still  popular,  and  the  ordinary 
politicians,  who,  then  as  always,  were  interested  principally 
in  holding  their  positions  and  retaining  the  confidence  of 
their  constituents,   hardly  would  have  dared  to  oppose  a 
policy  which  most  of  them  had  previously  endorsed,  had  it 
not  been  for  the  astute  leadership  of  Thaddeus  Stevens.l 
To  bring  into  line  against  the  policy  of  the  President  those! 
Republican  Congressmen  who,  tacitly  at  least,  had  promised] 
to  support  it,  was  the  task  of  no  ordinary  politician.     The 
story  of  how  Stevens  forced  the  majority  party  in  the  lower 
House  to  commit  themselves  against  the  policy  of  the  Presi 
dent,  is  the  story  of  the  origin  of  the  joint  committee  on  re 
construction. 
1  See  infra,  ch.  iii. 

*  New  York  Times,  December  u,  1865.  -**/ 

*  The  term  radical  as  here  employed,  signifies  a  person  who  desired 
the  reconstruction  of  the  southern  states  in   such  a  manner,  and  by 
such  methods,  as  would  perpetuate  the  Republican  party  in  control  of 
the  national  government. 


138  HISTORY  OF  THE  COMMITTEE 

For  at  least  two  years  he  had  strenuously  advocated  treat 
ing  the  southern  states  as  conquered  provinces,  and  favored 
a  sweeping  and  universal  confiscation  of  rebel  lands,  with 
which  he  would  have  paid  the  national  debt,  established  a 
pension  fund,,  and  given  a  small  farm  to  each  adult  f reed- 
man.1  He  advocated  this  in  and  out  of  Congress,  and  at 
the  same  time  held  that  whenever  the  states  in  rebellion 
were  admitted  again  to  the  Union,  they  must  come  in  under 
organic  acts  of  Congress  after  a  period  of  probation,  dur 
ing  which  time  they  were  to  be  kept  under  military  or  terri 
torial  government.  Readmission  as  states  must  be  by  spe 
cial  permission  of  Congress  under  whatever  restrictions 
that  body  might  provide.  He  went  to  Washington  several 
days  in  advance  of  the  opening  of  Congress,  determined 
either  to  force  acceptance  of  his  views  upon  the  President, 
or  failing  in  that,  as  he  doubtless  anticipated,  to  secure 
their  adoption  by  Congress  in  spite  of  the  President.  On 
the  Wednesday  previous  to  the  opening  of  the  session,  Ste 
vens  had  a  long  interview  with  Johnson,  and  there  took 
bold  ground  in  opposition  to  the  views  of  the  latter.2  He 

1  The  fullest  explanation  by  Stevens  of  his  plan  of  confiscation  was 
made  in  a  speech  at  Lancaster,  Pennsylvania,  September  6,  1865.     See 
New  York  Herald,  December  13,  1865.     For  Stevens'  speech  outlining 
his    "conquered    province"    theory    of    reconstruction,    see    Globe,    ist 
sess.,  39th.  cong.,.  pp.  72-75.     See  also  Wooclburn,  Life   of   Thaddeus 
Stevens,  pp.  343-346,  521-535.     A  brief  analysis  of  Stevens'  ideas  on 
reconstruction  is  given  infra,  ch.  ii,  p.  155. 

2  For  my  account  of  Stevens'  maneuvers  just  previous  to  the  open 
ing  of  Congress,  I  have  relied  on  the  Washington  correspondence  of 
the  New  York  papers,  December  i  to  December  4,  1865 ;  and  especially 
on    a   carefully   prepared   letter    from   the   Washington   correspondent, 
Hiram   Caulkins,    for   the   New   York  Herald   of   December    n,    1865. 
Caulkins  was  able  to  follow  more  accurately  than  any  other  newspaper 
man  the  course  of  events  in  Washington ;  and  the  Herald,  unlike  most 
other  newspapers  of  the  day,  was  not  a  party  organ,  and  was  thus 
able  to  give  the  facts  in  a  more  straightforward  and  unbiased  manner 
than  most  of  the  other  papers,  which  had  party  interests  to  serve  and 
colored  the  news  accordingly. 


ORIGIN  OF  THE  COMMITTEE 

opposed  the  idea  of  pardoning  the  late  rebels,  and  told  the 
President  that  the  rank  and  file  of  the  Union  party  in  Penn 
sylvania  was  not  in  sympathy  with  his  (Johnson's)  policy 
of  reconstruction.  Stevens  then  frankly  stated  that  unless 
the  executive  policy  were  materially  altered,  the  President 
need  not  expect  any  support  from  the  majority  of  the 
Union  members  of  Congress.  Johnson  gave  no  indications 
of  yielding  but  appealed  for  harmony,  which  appeal  Ste 
vens  did  not  heed. 

On  Friday,  December  ist,  Stevens  and  some  twenty-five 
or  thirty  of  the  most  extreme  radicals  in  Congress  held  a 
caucus  for  the  purpose  of  coming  to  some  mutual  under 
standing  and  thereby  concentrating  their  strength.  Ste 
vens  related  the  substance  of  his  conversation  with  John 
son,  and  said  that  he  was  fully  convinced  that  the  latter 
was  wedded  to  his  own  plan  of  reconstruction,  and  that  if 
they  expected  to  accomplish  any  of  their  own  purposes,  they 
must  do  so  in  spite  of  the  President  and  not  hesitate,  if  need 
be,  to  break  entirely  with  him.  During  this  meeting  the 
Senate  was  thoroughly  canvassed,  and  Stevens  and  his 
friends  came  to  the  conclusion  that  a  majority  of  the  mem 
bers  of  that  body  were  inclined  to  be  conservative.  Fears 
were  manifested  that  the  Senate  would  admit  properly 
qualified  members  from  the  southern  states.  Such  action 
on  the  part  of  the  upper  house,  of  course,  would  defeat 
Stevens'  program ;  and  to  prevent  it,  he  and  the  others  con 
cluded  that  a  joint  committee  must  be  secured,  to  whom 
everything  relating  to  the  southern  delegations  and  the 
treatment  of  the  rebel  states,  should  be  referred.  There 
fore  the  resolution  appointing  this  committee  ought  to  have 
some  provision  that  would  prevent  one  house  from  ad 
mitting  southern  representatives  until  the  other  had  come 
to  the  same  decision.  In  this  way  it  was  thought  that  the 
Senate  could  be  restrained  from  admitting  southern  sena- 


I4o  HISTORY  OF  THE  COMMITTEE  [I4O 

tors  until  a  majority  of  that  body  could  be  converted  to 
radicalism.  Some  doubt  was  expressed  as  to  whether  such 
a  resolution  could  be  railroaded  through  the  Senate,  to 
which  Stevens  replied  that  it  was  the  only  mode  whereby 
they  could  accomplish  their  great  object — delay.  In  order 
to  assure  the  passage  of  their  resolution  through  the  upper 
house,  it  would  be  necessary  for  the  Union  party  in  the 
lower  house  to  present  an  undivided  front.  In  this  case 
their  party  associates  in  the  Senate  would  be  inclined  to  sup 
port  it.  Accordingly,  this  plan  was  adopted,  and  Stevens 
was  requested  to  present  the  resolution  to  the  party  caucus 
\vhich  was  to  be  held  the  next  evening.  This  group  of  radi 
cals  planned  to  manipulate  matters  in  such  a  way  that  the 
conservatives  would  not  suspect  their  design,  but  be  led 
into  committing  themselves  to  it.1 

It  is  perfectly  clear  from  what  has  been  said,  that  this 
coterie  of  radicals  at  the  meeting  on  December  ist,  was  de 
termined  to  commit  their  party  against  Johnson's  policy. 
They  realized  that  the  great  majority  in  their  party,  especi 
ally  in  the  Senate,  did  not  desire  at  that  time  a  break  with 
the  President.  They  therefore  planned  a  resolution  that 
on  its  face  would  look  innocent  enough,  and  that  even  the 
conservatives  would  unsuspectingly  support ;  but  which  was 
really  the  first  step  on  the  road  toward  committing  the 
Union  party  against  the  Presidential  theory  of  reconstruc 
tion.  They  trusted  that  time  and  circumstances  might  re 
veal  what  the  next  step  should  be. 

At  the  regular  meeting  of  the  Republican  caucus  on  Sat 
urday  evening,  December  2,  1865,  all  the  radicals  were 
present.  J.  S.  Morrill,  an  extreme  radical  from  Vermont, 
was  elected  chairman  of  the  caucus.  On  motion,  a  com- 

1  New  York  World,  December  2  and  4;  New  York  Herald,  December 
2  and  11,  1865. 


I4i]  ORIGIN  OF  THE  COMMITTEE 

mittee  of  seven  was  appointed  to  consider  what  should  be 
done  with  regard  to  the  southern  representatives.  Stevens 
was  made  chairman  of  the  committee,  but  some  of  the  other 
members  were  conservatives,  notably,  Henry  J.  Raymond, 
of  New  York.  Stevens,  of  course,  offered  his  resolution^1 
and  Raymond,  though  an  astute  politician,  failed  entirely  to 
grasp  its  real  significance,  and  allowed  it  to  be  reported 
unanimously,  and  adopted  without  a  dissenting  vote.2  He 
therefore  lost  the  only  real  opportunity  he  ever  had  of  ad 
ministering  a  severe  blow,  if  not  a  defeat,  to  the  Stevens 
coterie.  After  a  week  or  so,  Raymond  saw  his  great  mis 
take,  and  bitterly  denounced  the  whole  scheme  of  delay,* 
but  it  was  too  late;  the  Union  party  in  the  House  of  Rep 
resentatives  had  unanimously  committed  itself  in  caucus  to 
the  program  of  the  radicals,  When  party  politicians  once 
commit  themselves  in  caucus,  they  seldom  abandon  their 
position.  Thus  Stevens  not  only  carried  his  point,  but  the 
radical  program  was  put  through  with  the  supporters  of  the 
President  advocating  it. 

In  the  history  of  our  national  legislature,  next  in  import 
ance  to  the  First  Congress,  whose  task  was  the  organization 
of  the  government  under  the  Constitution,  stands  the 
Thirty-ninth,  which  met  on  December  4,  1865.  Its  prob 
lem  was  to  reorganize  the  government  after  a  destructive 
Civil  War  that  had  altered  fundamentally  our  institutions. 
Public  interest  in  its  assembling  was  keen,  owing  to  the  un 
certainty  as  to  what  disposition  would  be  made  of  the  ques 
tion  of  southern  representation.  Although  it  was  generally 
understood  that  southern  members  would  not  be  allowed  to 
take  their  seats  at  once,  still  there  was  sufficient  doubt  to 

1  For  the  text  of  the  resolution,  see  supra,  p.  37. 
1  New  York  World,  December  3,  4,  1865 ;  New  York  Times,  Decem 
ber  4,  1865. 

3  Globe,  1st  sess.,  3Qth  cong. 


142  HISTORY  OF  THE  COMMITTEE 

cause   the  galleries  to  be  filled  with  people   who  eagerly 
awaited  the  action  of  the  House.1 

At  the  opening  of  each  new  Congress  it  is  the  duty  of 
the  clerk  of  the  House  to  preside  over  that  body  until  a 
speaker  is  elected.  Before  the  House  proceeds  to  the  elec 
tion  of  that  official  the  clerk,  who  at  this  time  was  Edward 
McPherson,  calls  the  roll.  McPherson  was  a  native  of 
Pennsylvania,  and  owed  his  position  to  the  favor  of  Thad- 
deus  Stevens.  Under  ordinary  circumstances  the  clerk  puts 
on  the  roll  the  names  of  all  persons  whose  credentials  are 
in  regular  form,  leaving  to  the  House  the  decision  as  to 
whether  they  had,  in  all  cases,  been  legally  obtained.  Ste 
vens,  however,  had  seen  to  it  that  McPherson  had  omitted 
the  names  of  all  the  members-elect  from  the  "  conquered 
provinces."  2  Though  James  Brooks,  a  Democratic  mem 
ber  from  New  York,  protested  against  this  action  of  Clerk 
McPherson,  his  protest  was  of  no  avail.3  It  was  also  in 
vain  that  Horace  Maynard,  a  member  elect  from  Tennessee, 
and  a  man  whose  loyalty  was  unquestioned,  asked  for  recog 
nition.4  After  Schuyler  Col  fax  had  been  elected  speaker 
and  the  organization  of  the  House  perfected,  Thaddeus 
Stevens  asked  unanimous  consent  to  introduce  the  following 
resolution : 5 

Be  it  resolved,  by  the  Senate  and  House  of  Representatives 
in  Congress  assembled :  That  a  joint  committee  of  fifteen  mem 
bers  shall  be  appointed,  nine  of  whom  shall  be  members  of  the 
House,  and  six  members  of  the  Senate,  who  shall  inquire  into 
the  condition  of  the  states  which  formed  the  so-called  Con 
federate  States  of  America,  and  report  whether  they,  or  any 

1  New  York  World,  December  8,  1865. 

a  Rhodes,  vol.  v,  p.  544. 

1  Globe,  ist  sess.,  3Qth  cong.,  pp.  4-6. 

4  Ibid.  5  See  supra,  p.  37. 


I43]  ORIGIN  OF  THE  COMMITTEE 

of  them,  are  entitled  to  be  represented  in  either  House  of 
Congress,  with  leave  to  report  at  any  time,  by  bill  or  otherwise ; 
and  until  such  report  shall  have  been  made,  and  finally  acted 
on  by  Congress,  no  member  shall  be  received  into  either  House 
from  any  of  the  so-called  Confederate  States:  and  all  papers 
relating  to  the  representation  of  said  states  shall  be  referred 
to  the  said  committee  without  debate. 

Not  securing  unanimous  consent,  Stevens  moved  a  sus 
pension  of  the  rules,  which  was  carried,  and  under  the 
operation  of  the  previous  question  debate  was  shut  off  and 
the  resolution  passed.  In  all  of  these  test  votes,  Stevens 
was  sustained  by  the  entire  Union  party,  every  member  of 
which,  thus  knowingly  or  unknowingly,  committed  him 
self  against  the  policy  of  the  President.1 

Before  proceeding  to  a  consideration  of  the  Senate's 
action  on  this  resolution,  it  should  be  noted  that  in  form 
the  resolution  was  a  joint,  rather  than  a  concurrent  one. 
This  distinction  is  important,  for  in  order  that  a  resolution 
of  the  former  kind  become  effective,  the  President's  sig 
nature  is  necessary;  whereas  one  of  the  latter  sort  does  not 
require  executive  approval.  Stevens,  of  course,  was  fully 
conscious  of  this  and  seems  purposely  to  have  presented  his 
resolution  in  such  a  form  as  to  require  the  President's  sig 
nature.  Stevens  was  willing  to  force  the  issue  with  John 
son  immediately.  Had  the  resolution  passed  the  Senate  in 
the  same  form  as  in  the  House,  Johnson  must  either  have 
signed  it,  and  thereby  abandoned  his  own  policy  and  con 
sented  to  work  with  Congress;  or,  what  was  more  likely, 
he  must  have  vetoed  the  resolution,  and  at  once  brought  on 
the  breach  between  the  executive  and  legislative  depart 
ments  of  the  government.2  It  was  probably  a  fortunate 

1  Globe,  ist  sess.,  39th  cong.,  pp.  5  et  seq. 

2  Cf-  editorial  in_New  York  World,  December  7,  1865. 


144  HISTORY  OF  THE  COMMITTEE  [I44 

thing  for  Stevens  and  his  scheme  of  reconstruction  that  his 
plans  miscarried,  and  that  the  issue  with  the  President  was 
postponed  to  be  forced  later  on  a  different  question.1  It 
was  the  more  conservative  Senate  that  saved  him  and  his 
fellow  radicals  in  the  House  from  committing  this  politi 
cal  blunder. 

In  the  Senate  were  four  groups  of  political  opinion. 
First,  there  were  the  extreme  radicals,  led  by  such  men  as 
Sumner  of  Massachusetts,  Wade  of  Ohio,  and  Howe  of 
Wisconsin,  who  gladly  would  have  joined  the  radicals  in  the 
House  in  at  once  forcing  the  issue  with  the  President.3 
Second,  conservative  Republicans,  under  the  leadership  of 
such  men  as  Fessenden  of  Maine,  Grimes  of  Iowa,  and 
Trumbull  of  Illinois,  who,  while  not  believing  that  the 
President  had  gone  far  enough  in  his  policy  of  restoration, 
yet  were  unwilling  that  any  break  should  be  made  with  him, 
and  hoped,  by  making  mutual  concessions,  and  maintaining 
an  attitude  of  mutual  respect,  to  work  in  harmony  with 
him,  and  thus  keep  the  Union  party  intact.  Third,  there 
were  what  may  be  called  the  administration  Republicans, 
consisting  of  such  men  as  Doolittle  of  Wisconsin,  Cowan  of 
Pennsylvania,  and  Dixon  of  Connecticut,  who,  believing  in 
the  justice  and  sufficiency  of  the  President's  policy,  and  hav 
ing  pledged  themselves  to  its  support,  were  willing  to  do  all 
that  lay  within  their  power  to  champion  his  cause  in  Con 
gress.  Fourth,  there  were  the  Democrats,  the  most  promi 
nent  being  Johnson  of  Maryland,  Guthrie  of  Kentucky, 
and  Hendricks  of  Indiana,  who  tended  gradually  to  support 
more  and  more  cordially  the  policy  of  the  President  and 
thus  coalesce  with  the  preceding  group. 

1  See  infra,  ch.  iv. 

1  Cf.  conversations  between  Sumner  and  Welles  in  Diary  of  Gideon 
Welles,  vol.  ii,  pp.  397,  405,  415,  416. 


ORIGIN  OF  THE  COMMITTEE 

When  the  resolution  came  before  the  upper  house  on 
December  5,  unanimous  consent  was  not  given  for  its  con 
sideration.  In  the  Senate  the  previous  question  has  no  ex 
istence,  so  under  the  rules  of  that  body  the  resolution  was 
postponed.1  The  next  day  it  came  up  in  regular  order,  but 
as  the  three  factions  of  the  Republican  party  had  come  to 
no  agreement  as  to  its  disposition,  Senator  Fessenden  sug 
gested  that  it  be  again  postponed.  Though  Senator  Sum- 
ner  contended  that  the  matter  required  immediate  atten 
tion,  Fessenden 's  suggestion  prevailed.2 

On  December  n,  the  Republican  members  of  the  Senate 
held  a  caucus,3  and  by  a  vote  of  16  to  14  changed  the  reso 
lution  to  the  same  form  in  which  it  next  day  passed  the 
Senate,  namely : 4 

Resolved  by  the  House  of  Representatives,  (the  Senate  con 
curring)  that  a  joint  committee  of  fifteen  members  shall  be 
appointed,  nine  of  whom  shall  be  members  of  the  House,  and 
six  members  of  the  Senate,  who  shall  inquire  into  the  condition 
of  the  states  which  formed  the  so-called  Confederate  States  of 
America,  and  report  whether  they,  or  any  of  them,  are  en 
titled  to  be  represented  in  either  House  of  Congress,  with  leave 
to  report  at  any  time,  by  bill  or  otherwise. 

It  will  be  noted  that  the  resolution  as  passed  by  the  Sen 
ate  differed  from  the  original  House  resolution  in  three  par 
ticulars.  First,  the  House  resolution  was  joint,  while  the 
Senate's  was  concurrent  in  form,  and  hence  did  not  need 
the  President's  approval.  Second,  by  the  terms  of  the 
former  resolution,  the  House  pledged  itself  to  receive  no 
members  from  the  southern  states  until  the  committee  had 

1  Globe,  ist  sess.,  3Qth  cong.,  p.  7. 

2  Ibid.,  p.  12. 

8  New  York  World,  December  12,  1865. 

4  Globe,  ist  sess.,  39th  cong.,  pp.  29,  30.     See  supra,  p.  38. 


I46  HISTORY  OF  THE  COMMITTEE 

reported.     The  Senate  would  not  so  bind  itself.     Third, 
the  House  agreed  to  surrender  to  this  joint  committee  those 
i  prerogatives  given  it  by  the  Constitution  of  judging  of  the 
I  election,   returns  and  qualifications  of   its   own  members. 
\JThe  Senate  was  unwilling  so  to  curtail  its  own  powers.    Be 
fore  discussing  further  the  significance  of  these  differences, 
it  will  be  well  to  obtain  some  idea  of  existing  political  opin 
ion  as  expressed  in  the  Senate  debate  on  the  resolution,  and 
in  the  comments  on  it  by  the  press. 

Senator  Howard,1  of  Michigan,  voicing  the  opinion  of 
the  fourteen  radical  members  who  favored  the  resolution 
as  it  came  from  the  House,  declared  that  the  country  ex-» 
pected  that  Congress  would  pledge  itself  not  to  admit  any 
of  the  rebel  states  until  after  the  committee  had  reported. 
He  continued : 

Sir,  what  is  the  present  position  and  status  of  the  rebel  states  ? 
In  my  judgment  they  are  simply  conquered  communities,  sub 
jugated  by  the  arms  of  the  United  States — communities  in 
which  the  right  of  self-government  does  not  now  exist.  We 
hold  them,  as  we  know  well,  as  the  world  knows  today,  not  by 
their  own  free  will  and  consent,  as  members  of  the  Union,  but 
solely  by  virtue  of  our  superior  military  power.  I  object  ta 
the  amendment  [i.  e.  the  change  from  the  House  form  to  the 
Senate  form  of  the  resolution]  for  the  reason  that  it  leaves 
the  implication — and  the  implication  will  be  drawn  and  clearly 
understood  by  the  public — that  one  or  the  other  house  of 
Congress  may,  whenever  it  sees  fit,  readmit  senators  or  repre 
sentatives  from  a  rebel  state  without  the  concurrence  of  the 
other  house;  and  I  hold  it  to  be  utterly  incompetent  for  the 
Senate  or  the  House  to  admit  members  from  the  rebel  states 
without  the  mutual  consent  of  each  other.2 

1  For  brief  sketch  of  Senator  Howard,  who  later  became  a  member 
of  the  joint  committee,  see  infra,  ch.  ii. 

2  Globe,  ist  sess.,  39th  cong.,  p.  24. 


I47]  ORIGIN  OF  THE  COMMITTEE 

\ 

The    attitude    of    the    administration    Republicans    was 

shown  in  a  speech  by  Senator  Doolittle,  of  Wisconsin,  in 
which  the  whole  idea  of  a  joint  committee  was  opposed. 
He  declared  that  the  judiciary  committee  could  properly 
attend  to  the  matter  so  far  as  the  Senate  was  concerned. 
As  a  choice  between  two  evils,  however,  he  preferred  the 
Senate  form  of  the  resolution.  The  most  interesting  point 
in  Doolittle's  speech  is,  that  it  shows  that  the  President's 
friends,  and  no  doubt  the  President  himself,  recognized  that 
Thaddeus  Stevens'  resolution  and  the  method  used  in  pass 
ing  it,  meant  an  attack  upon  the  administration.  He  further 
declared : 

Stevens  is  bitterly  and  uncompromisingly  hostile  to  the  policy 
of  the  present  administration  on  the  subject  of  reconstruction. 
He  goes  with  him  who  goes  the  farthest,  holding  that  even  the 
state  of  Tennessee  is  an  alien  state  at  war  with  the  United 
States;  and  in  the  convention  at  Baltimore  he  objected  to  the 
nomination  of  Andrew  Johnson  because  he  was  an  alien 
enemy.1 

Doolittle  therefore  felt  that  since  every  one  understood 
the  source  of  this  resolution  and  its  animus,  the  Senate 
should  not  lend  itself  to  the  furthering  of  Stevens'  schemes.2 

As  representative  of  the  conservative  Republicans,  the 
opinions  of  Senator  Fessenden 3  are  worth  noting.  He 
said: 

I  trust  that  there  are  not  in  the  Senate  any  persons  who  desire 
to  consider  themselves  the  exclusive  friends  of  the  President. 
That  I  am  ready  and  disposed  to  support  the  executive  to  the 
best  of  my  ability  is  evidenced  by  the  fact  that  I  have  long 

1  Globe,  1st  sess.,  39th  cong.,  p.  26. 
1  Ibid. 

8  For   a   short  biographical   account   of   Fessenden,  who   was   made 
chairman  of  the  committee,  see  infra,  ch.  ii. 


148  HISTORY  OF  THE  COMMITTEE 

acted  with  him;  but  though  I  have  supported  him  in  time  of 
war  in  measures  for  which  I  could  find  no  strict  constitutional 
warrant,  I  consider  that  the  time  has  now  come  when  Con 
gress  must  revert  to  it  original  position.1 

The  passage  of  the  resolution  creating  the  joint  com 
mittee  of  fifteen  on  reconstruction,  was  watched  with  eager 
interest  by  the  public.  What  the  process  of  reconstruction 
would  be  in  Congress  and  the  attitude  to  be  taken  by  that 
body  toward  the  policy  of  the  President,  was  a  matter  of 
hardly  less  interest  than  the  progress  of  the  war  had  been. 
The  creation  of  this  committee,  if  the  press  may  be  re 
garded  as  a  true  reflection  of  public  opinion,  was  viewed  as 
a  good  or  an  evil  act  according  as  one  did  or  did  not  re 
gard  the  conditions  placed  upon  the  seceded  states  by  the 
President  as  sufficient  guarantees  of  their  future  loyalty. 
For,  the  passage  of  the  concurrent  resolution  by  Congress 
was  judged  to  be  an  indication  that  it  intended  demanding 
further  conditions  precedent  to  the  admission  of  represen 
tatives  and  senators  from  the  late  Confederate  States. 

Democratic  feelings,  as  expressed  in  the  New  York 
World,  were  bitter  against  what  was  called  the  radical  at 
tempt  to  thwart  President  Johnson's  plan  of  restoration. 
The  World  declared : 

They  [the  radicals]  did  not  wait  till  the  opening  of  Congress 
today,  to  give  that  plan  the  honor  of  a  decent  burial  under  the 
clerk's  table,  but  put  the  party  bow-string  around  it,  and 
pitched  it  at  midnight  out  of  the  window  of  a  partisan  caucus. 
The  resolution  adopted  unanimously  by  124  Republican  mem 
bers  in  their  caucus,  shows  with  what  promptitude  Thaddeus 
Stevens  strangled  the  infant  "  Restoration,"  stamped  upon  it 
with  his  brutal  heel,  and  proclaimed  his  plan  for  keeping  the 
Union  disunited.2 

1  Globe,  ist  sess.,  3Qth  cong.,  p.  27.    Cf.  also  supra,  p.  36,  note  2. 

2  New  York  World,  December  4,  1865. 


ORIGIN  OF  THE  COMMITTEE 

Continuing  next  day  the  same  line  of  comment,  the 
World  maintained  that  the  action  taken  by  the  Republican 
majority  in  the  House  was  a  declaration  that  the  Civil  War 
had  not  been  brought  to  an  end  by  the  cessation  of  armed 
resistance  to  the  Federal  authority. 

A  Congressional  majority  had  renounced  the  object  of 
the  war,  avowed  at  its  beginning — the  restoration  of  the 
Union  under  the  Constitution — and  now  maintained  that 
the  states  which  went  out,  now  came  back  as  an  American 
Poland  or  Ireland,  to  be  ruled  by  the  capricious  will  of  acci 
dental  majorities,  to  be  held  by  the  strong  arm,  to  be  co 
erced  and  moulded,  both  socially  and  politically,  into  such  a 
form  as  the  theories  of  Republican  politicians  and  the  pas 
sions  of  a  radical  multitude  should  suggest. 

It  is  not  maintained  by  the  Republicans  that  the  South  will 
again  take  up  arms,  for  every  one  knows  that  its  power  for 
war  is  broken.  But  there  is  a  state  of  peace,  of  which  it  has 
been  truly  said  that  it  is  more  disastrous  than  war  itself,  and 
such  is  the  peace  which  the  radical  majority  in  Congress  have 
now  proclaimed.  Let  no  man  deceive  himself.  The  peace  we 
have  believed  in,  hoped  for,  struggled  for,  the  peace  we  have 
so  fondly  dreamed  was  won,  recedes  from  us  afresh  into  a 
darkening  vista  of  sectional  passions,  tenfold  embittered,  into  a 
tenfold  heated  furnace  of  sectional  wrong,  triumphantly  in 
flicted,  and  sectional  tyranny  to  be  remorselessly  enforced. 
The  reunited  nation  is  to  enter  upon  its  new  career  with  all 
its  wounds  torn  open  afresh.  And  this  beneath  the  banner  of 
a  so-called  philanthropy — this  at  the  behest  of  a  party  of  great 
moral  ideas.1 

The  New  York  Tribune  had  supported  President  Johnson 
in  his  policy  of  reconstruction,  but  at  the  same  time  had  felt 
that  the  conditions  which  he  had  imposed  on  the  southern 

1  New  York  World,  December  5,  1865. 


HISTORY  OF  THE  COMMITTEE 

states  might  very  well  be  supplemented  by  Congress.  It 
was  especially  desirous  that  the  southern  states  should  be 
required  to  grant  at  least  some  qualified  form  of  negro  suf 
frage,  and  while  it  admitted  that  the  President  was  perhaps 
not  legally  authorized  to  impose  negro  suffrage  upon  those 
states,  it  believed  that  Congress  was  thoroughly  competent 
to  make  such  an  imposition.  It  therefore  favored  the  ap 
pointment  of  the  committee  and  thought  that  there  was 
nothing  about  it  hostile  to  the  President.  It  would  simply 
formulate  some  measures  of  reconstruction,  supplementary, 
and  not  in  opposition,  to  those  conditions  which  the  execu 
tive  had  insisted  upon — measures  which  the  President  and 
all  loyal  members  of  the  Union  party  could  support.1 

The  New  York  Times,  which  since  the  organization  of 
the  Republican  party  had  been  a  consistent  supporter  of  it, 
now  found  itself  in  a  peculiar  situation.  Its  editor,  Henry 
J.  Raymond,  was  a  member  of  Congress  and  belonged  to 
the  political  firm  of  Weed,  Seward,  and  Raymond.  He 
therefore  was  under  obligation  to  support  an  administration 
in  which  his  partner,  Seward,  was  reputed  to  be  the  con 
trolling  factor.  Moreover,  Raymond  was  chairman  of  the 
national  executive  committee  of  the  Union  party,  and  as 
such,  naturally  dreaded  a  split  in  his  organization.  There 
fore,  when  Congress  met  the  Times  professed  to  see  nothing 
in  the  appointment  of  the  joint  committee  that  might  cause 
a  breach  between  Congress  and  the  President.  That  Ste 
vens  succeeded  in  hoodwinking  Raymond  by  causing  him  to 
believe  that  the  appointment  of  a  joint  committee  was  not 
intended  as  a  thrust  at  the  administration,  seems  to  be 
proved  by  the  following  editorial  in  the  Times  of  Decetrn 
ber  5th : 

1  New  York  Tribune,  December  5,  1865,  et  ante. 


!5i]  ORIGIN  OF  THE  COMMITTEE  I^I 

Since  the  great  question  before  Congress  is  whether  the  rebel 
states  are  entitled  to  representation  or  not,  a  committee  to  in 
vestigate  that  question  is  necessary  in  order  that  the  matter 
come  before  Congress  in  an  orderly  manner.  When  their  re 
port  comes  in,  the  subject  will  be  properly  before  both  houses ; 
and  the  main  question  involved  can  then  be  discussed  and  de 
cided  upon  its  intrinsic  merits,  without  being  complicated  or 
embarrassed  by  questions  of  regularity  of  the  elections  or  re 
turns  in  the  case  of  individual  members.  Without  any  such 
provisions  as  this,  the  question  would  be  debated  upon  the 
presentation  of  each  new  certificate,  and  we  should  have  a  per 
petually  recurring  wrangle  instead  of  a  decorous  and  formal 
discussion. 

By  the  time  the  resolution  passed  the  Senate,  Raymond 
was  undeceived.  But  it  was  too  late;  the  radicals  in  the 
House  had  succeeded  in  committing  practically  all  the  Re 
publicans  against  the  President's  policy.  In  spite  of  his 
position  and  his  ability,  Raymond  was  unable  to  build  up 
in  the  House  any  considerable  following  among  the  mem 
bers  of  the  Union  party,  who  would  co-operate  with  him  in 
supporting  the  administration. 

The  more  or  less  independent  New  York  dailies — the 
Post,  the  Herald,  the  Sun,  and  the  Commercial- Advertiser 
—were  anxious  that  the  question  of  reconstruction  should 
be  settled  at  as  early  a  date  as  possible.  They  were  per 
haps  representative  of  New  York  commercial  interests, 
and  believed  that  business  would  not  resume  its  normal 
channels  until  the  uncertainty  as  to  the  political  future  of 
the  South  should  be  removed.  They  therefore  opposed  the 
appointment  of  a  joint  committee,  fearing  that  it  would 
act  altogether  in  a  spirit  of  partisanship  and  cause  unneces 
sary  delay  in  settling  the  question  of  reconstruction.1  The 

•       *  New  York  Evening  Post,  December  13,  1865. 


! 52  HISTORY  OF  THE  COMMITTEE  [i$2 

Herald  was  especially  fearful  lest  the  appointment  of  the 
committee  would  create  a  lack  of  confidence  in  business 
both  in  the  South  and  in  the  commercial  parts  of  the  North. 
Such  a  lack  of  confidence,  of  course,  would*  hinder  the  eco 
nomic  development  in  the  South  and  to  that  extent  limit 
New  York's  commercial  prosperity.  It  was  especially 
alarmed  that  Thaddeus  Stevens  should  use  the  committee  as 
an  engine  for  carrying  out  his  scheme  of  confiscation  of 
southern  lands.1  Such  wholesale  confiscation  would  neither 
increase  the  substantial  wealth  of  the  country,  nor  accom 
plish  its  main  purpose  of  paying  off  the  national  debt.  Both 
ends  could  be  much  easier  reached  by  following  President 
Johnson's  policy  which,  by  establishing  local  harmony,  law, 
and  order,  looked  to  the  development  of  the  vast  industrial 
resources  of  the  South.  The  increase  in  wealth  which  would 
follow  such  a  course  would  rapidly  strengthen  the  national 
treasury. 

It  is  now  possible  to  make  a  few  general  statements  in 
regard  to  the  political  situation  of  the  country  during  De 
cember,  1865.  As  has  been  seen,  the  President  proposed  to 
allow  the  rebel  states  to  resume  their  relations  with  the 
Government  of  the  United  States  with  the  sole  proviso  that 
they  recognize  and  abide  by  the  results  of  the  war.  In  his 
opinion  the  war  had  only  two  results,  vis.9  a  guarantee  of 
the  perpetuity  of  the  Union,  and  the  destruction  of  the  in 
stitution  of  slavery.  These  were  the  only  objects  for  which 
the  war  had  ever  at  any  time  been  professedly  waged,  and 
Johnson  believed  that  a  war  could  have  no  political  results 
different  from  the  objects  for  which  it  had  been  waged. 

The  radical  members  of  Congress,  under  the  leadership 
of  Thaddeus  Stevens,  realized  that  this  was  Johnson's  opin 
ion.  Their  own  opinion  was  different.  They  believed  that 

1  New  York  Herald,  December  5  and  14. 


j-^]  ORIGIN  OF  THE  COMMITTEE 

additional  conditions  should  be  imposed  upon  the  South. 
As  to  what  these  conditions  should  be,  they  were  by  no 
means  agreed;  but  they  were  agreed  that  the  wager  of  battle 
should  be  thrown  down  to  the  President  at  once,  for  him 
to  accept  or  surrender  his  position.  As  has  been  seen,  the 
radicals  by  shrewd  maneuvring  were  able  to  commit  practi 
cally  all  the  members  of  the  Union  party  in  the  House  to 
their  cause.  In  the  Senate  only  about  one-half  the  members; 
of  that  party  were  willing  to  commit  themselves  unreserv 
edly  against  the  policy  of  the  President.  By  explaining 
the  significance  of  the  differences  between  the  House  and 
Senate  form  of  the  resolution  for  raising  a  joint  committee, 
on  reconstruction,  the  attitude  of  the  conservative  Repub 
licans  will  become  clear.  Had  the  conservatives  been  un 
reservedly  in  favor  of  the  President's  policy,  they  would 
have  completely  destroyed  the  resolution  by  refusing  to  pass 
it  in  any  form.  Had  they  been  willing  to  join  the  radicals 
in  opposition  to  that  policy,  they  would  have  passed  the 
resolution  without  amendment.  Their  amendment  of  the 
House  resolution  simply  meant  that  they,  holding  the  bal 
ance  of  power  between  the  Democrats  and  administration 
Republicans  on  the  one  hand  and  the  radical  Republicans 
on  the  other,  would  retain  for  the  Senate  its  right  to  admit 
at  any  time  it  might  see  fit  the  senators  from  the  rebel  states: 
and  thus  thwart  any  schemes  of  the  radicals  with  which, 
they  might  not  agree.  It  meant,  moreover,  that  at  any  time 
their  relations  with  the  President  should  reach  the  break 
ing  point  by  his  refusing  to  concede  anything  to  their 
wishes,  they  could  go  over  to  the  radicals  in  opposition  to 
the  executive. 

The  stake,  therefore,  in  the  political  game  between  An 
drew  Johnson  and  Thaddeus  Stevens  was  possession  of  the 
ten  or  a  dozen  conservative  Republicans  in  the  Senate.  The) 
President,  by  discerning  the  nature  of  the  contest,  and  by 


HISTORY  OF  THE  COMMITTEE 

making  a  few  slight  concessions  to  those  whom  he  would 
win,  might  have  returned  victor;  Stevens  was  destined  to 
be  victorious  because  he  understood  the  game  better  than 
Johnson,  and  was  more  ready  than  he  to  make  temporary 
concessions  in  order  to  obtain  his  principal  objects. 

This  characteristic  of  Stevens  is  shown  by  the  fact  that 
he  was  willing  to  accept  the  Senate  substitute  for  his  orig 
inal  resolution.  He  stated,  however,  that  when  it  should  be 
in  order,  he  would  move  a  resolution  applicable  to  the  House 
alone,  which  in  substance  would  embody  that  part  of  his 
original  resolution  stricken  out  by  the  Senate.1  This  he  did 
on  December  I4,2  and  the  House,  as  usual,  accepted  his  will. 

1  Globe,  p.  46.  *  Ibid.,  p.  60. 


CHAPTER  II 
PERSONNEL  OF  THE  COMMITTEE  * 

THE  nine  members  on  the  part  of  the  House  were  ap 
pointed  on  December  14,*  but  it  was  not  until  December  21, 
that  the  president  pro  tentpore  announced  the  six  Senate 
members.  Much  light  on  the  work  of  the  committee  may 
be  derived  from  the  personal  and  political  history  of  these 
fifteen  men. 

THADDEUS  STEVENS 

Thaddeus  Stevens  was  born  in  Danville,  Vermont,  April 
4,  1792.  His  parents  were  of  Massachusetts  origin  and  had 
come  to  Vermont  when  that  state  was  very  thinly  popu 
lated.8  Society  in  Vermont  during  the  youth  of  Stevens 
was  naturally  democratic,  and  he  grew  up  under  conditions 
that  fostered  hatred  of  aristocracy.  Stevens'  early  educa 
tion  was  obtained  in  the  town  of  Peacham,  to  which  his 
mother  moved  in  order  to  take  advantage  of  the  superior 
school  facilities  that  existed  there.  In  1811,  young  Stevens 
entered  Dartmouth  College,  from  which  he  graduated  in 
1814.  After  teaching  school  in  Peacham  for  a  year  Ste 
vens  moved  to  York,  Pa.,  to  take  a  position  as  instructor  in 
an  academy  there.  While  teaching  in  York,  Stevens  studied 
law,  and  at  the  end  of  a  year  was  admitted  to  the  bar.  Hei 
began  his  law  career  at  Gettysburg,  where  he  gradually  built 
up  a  lucrative  practice. 

1  For  part  of  the  journal  relating  to  this  chapter,  see  supra,  p.  38. 

1  Globe,  p.  57. 

1  Woodburn,  Life  of  Thaddeus  Stevens,  pp.  1-9. 

1551  155 


156  HISTORY  OF  THE  COMMITTEE 

It  was  not  until  1833,  when  Stevens  was  over  forty  years 
of  age,  that  he  entered  actively  into  political  life.  He  was 
by  nature  one  of  those  politicians  who  seizes  upon  some 
one  idea  and  exploits  it  so  consistently  as  to  win  for  him 
self  a  reputation.  That  idea  is  generally  based  on  dissatis 
faction  with  some  existing  institution,  and  if  public  opinion 
happens  to  become  so  thoroughly  wrought  up  as  to  cause 
the  destruction  of  that  institution,  the  one-idea  man  or  re 
former  is  likely  to  come  into  great  popular  favor.  In  all 
his  career  Stevens  seldom  appeared  in  any  other  role  than 
that  of  an  advocate  for  the  destruction  of  some  established 
order  which  was  tending  to  meet  with  general  disapproval. 
When  he  first  entered  the  Pennsylvania  legislature,  it  was 
as  a  member  of  that  party  which  had  for  its  purpose  the 
extermination  of  the  Masonic  Fraternity.  Of  Stevens'  at 
tempt  to  ride  into  political  fame  on  the  anti-Masonic  hobby 
horse,  it  is  not  necessary  to  give  a  detailed  account.  His- 
power  to  denounce  something  which  he  did  not  like,  how 
ever,  is  fairly  well  illustrated  in  the  following  excerpt  from 
a  speech  that  he  delivered  on  the  subject  of  Freemasonry  in 
1835: 

Wherever  the  Genius  of  Liberty  has  set  a  people  free,  the 
first  object  of  their  solicitude  should  be  the  destruction  of 
Freemasonry  and  all  other  secret  societies.  Where  tyrants  rule 
they  are  fit  engines  of  despotism,  but  under  free  republican 
government  secret  societies  are  dangerous,  and  are  not  to  be 
tolerated.  The  oaths  of  Freemasons  are  inconsistent  with  pure 
morals,  true  religion,  and  the  permanent  existence  of  liberty. 
Two  things  are  indispensable  to  the  continuance  of  national 
liberty — the  independence  of  the  public  press  and  the  im 
partial  administration  of  justice.  The  tyranny  of  Masonry 
destroys  both.  This  prostituted  harlot  has  entered  the  courts 
of  justice  and  seduced  the  venerable  judges  into  her  foul 
embrace.  They,  too,  seek  to  extricate  their  brothers,  whether 


PERSONNEL  OF  THE  COMMITTEE 

right  or  wrong.  .  .  .  Has  this  institution  outgrown  the  law, 
become  stronger  than  the  civil  power  or  the  will  of  a  sovereign 
people?  Has  this  baseborn  issue  of  a  foreign  sire  become 
so  powerful,  that  even  the  Young  Lion  of  American  Liberty 
cannot  crush  him  ?  Is  this  bloody  god  too  strong  for  us  to 
overcome?  Then  let  us  tremble  at  his  power,  fall  down,  bow 
ourselves  in  the  dust  before  him  and  supplicate  his  favor. 
For  my  single  self  I  would  rather  be  the  victim  of  his  fury 
that  the  slave  of  his  favor.1 

After  the  death  of  the  anti-Masonic  party,  for  a  long 
time  Stevens  was  unable  to  find  any  issue  in  politics  radical 
enough  to  support  a  man  of  his  decided  opinions.  He  did 
useful  service  in  defending  and  strengthening  his  state's 
newly  created  and  feeble  public  school  system;  and  played 
an  important  part  in  the  so-called  "  Buckshot  War,"  ai 
political  contest  between  the  Whigs  and  Democrats  over 
the  state  election  of  1838,  resulting,  so  far  as  Stevens  was 
concerned,  in  his  retirement  from  active  political  life  for 
a  number  of  years. 

After  his  first  retirement  from  politics,  Stevens  resumed 
his  law  practice  at  Gettysburg,  but  in  1842  moved  to  Lan 
caster,  which  was  his  home  for  the  rest  of  his  life.  He  had 
fallen  heavily  into  debt  during  the  time  he  had  been  a  mem 
ber  of  the  Pennsylvania  legislature,  so  he  now  gave  the 
major  portion  of  his  time  to  his  law  practice,  and  succeeded 
in  paying  off  his  debts.2 

Stevens  had  always  been  an  anti-slavery  man,  but  he  had 
not  taken  up  the  slavery  question  as  a  political  issue  during 
his  early  career  in  public  life.  He  was  always  a  consistent 
friend  of  the  negro  race,  and  gave  free  much  of  his  time 

1  "  Free  Masonry  Unmasked,"  1835.    Pamphlet  of  the  Historical  So 
ciety  of  Pennsylvania,  cited  in  Woodburn,  p.  21. 

*  Woodburn,  chap,  iii  and  iv. 


158  HISTORY  OF  THE  COMMITTEE 

and  legal  talents  to  prevent  runaways  being  carried  back 
into  slavery.  In  1838,  while  he  was  a  member  of  the  con 
vention  that  drew  up  a  new  constitution  for  Pennsylvania, 
he  refused  to  sign  the  document  because  it  limited  the  elec 
tive  franchise  to  the  white  race.1 

In  1848,  Stevens  was  elected  from  the  Lancaster  district 
to  the  3ist  Congress  as  a  Whig,  but  because  of  that  party's 
failure  to  come  out  boldly  in  support  of  the  Wilmot  Pro 
viso,  Stevens  generally  acted  with  the  Free-Soilers,  though 
he  continued  for  the  present  his  party  relations  with  the 
Whigs.  He  was  one  of  the  few  northern  men  who  at  this 
time  was  not  afraid  to  stand  up  boldly  and  declare  his  con 
victions  about  slavery  and  its  extension.  From  this  time 
on  until  slavery  was  destroyed,  it  was  the  one  question 
upon  which  Stevens  relied  for  his  political  ammunition.  As 
one  of  his  opponents  from  the  South  expressed  it,  "  Since 
anti-Masonry  will  no  longer  serve  for  a  hobby-horse,  the 
gentleman  must  preach  against  the  horrors  and  despotism 
of  slavery."  * 

During  this  Congress  Stevens  made  several  speeches  on 
the  slavery  question  and  denounced  that  institution  in  no 
uncertain  terms,  of  which  the  following  excerpt  is  typical : 

In  this  government  the  free  white  citizens  are  the  rulers, — 
the  sovereigns,  as  we  delight  to  call  them.  All  others  are  sub 
jects.  In  this  government  the  subject  has  no  rights,  social, 
political  or  personal.  He  has  no  voice  in  the  laws  which  gov 
ern  him.  He  can  hold  no  property.  His  very  wife  and  chil 
dren  are  not  his.  His  labor  is  another's.  He  and  all  that 
pertains  to  him  are  the  absolute  property  of  his  rulers.  He  is 
governed,  bought,  sold,  punished,  executed,  by  laws  to  which 
he  never  gave  his  assent,  and  by  rulers  whom  he  never  chose. 

1  Statement  made  by  Representative  Kelly,  of  Pennsylvania,  in  39th 
Cong.  Globe,  p.  283. 
J  Quoted  in  Woodburn,  p.  101. 


PERSONNEL  OF  THE  COMMITTEE 

He  is  not  a  serf  merely,  with  half  the  rights  of  men,  like  the 
subjects  of  despotic  Russia;  but  a  naked  slave,  stripped  of 
every  right  which  God  and  nature  gave  him,  and  which  the 
high  spirit  of  our  revolution  declared  inalienable — which  he 
himself  could  not  surrender,  and  which  man  could  not  take 
from  him.  Is  he  not  then  the  subject  of  despotic  sway? 

But  we  are  told  that  it  is  none  of  our  business;  that  south 
ern  slavery  is  a  matter  between  the  slave-holder  and  his  own 
conscience.  I  trust  it  may  be  so  decided  by  impartial  history 
and  the  unerring  Judge ;  that  we  may  not  be  branded  with  that 
great  stigma  and  that  grievous  burden  may  not  weigh  upon 
our  souls.  But  could  we  hope  for  that  justification,  if  now, 
when  we  have  the  power  to  prevent  it,  we  should  permit  this 
evil  to  spread  over  thousands  of  square  leagues  now  free  and 
settle  upon  unborn  millions?  Sir,  for  myself,  I  should  look 
upon  any  northern  man,  enlightened  by  a  northern  education, 
who  would,  directly  or  indirectly,  by  omission  or  commission, 
by  basely  voting  or  cowardly  skulking,  permit  it  to  spread 
over  one  rood  of  God's  free  earth,  as  a  traitor  to  liberty  and 
a  recreant  to  God ! 

Stevens  denounced  the  two  pro-slavery  measures  of  the 
Compromise  of  1850 — organizing  the  territories  without 
the  Wilmot  Proviso,  and  the  new  fugitive  slave  law — and. 
voted  consistently  against  them.  He  was  reflected  to  Con 
gress  in  1850,  but  since  the  Compromise  of  1850  had  settled 
temporarily  the  slavery  question,  he  had  but  little  occasion, 
to  speak  upon  his  favorite  theme.  He  actively  advocated 
the  policy  of  protection,  as  a  true  son  of  Pennsylvania  al 
ways  did  in  those  and  later  days,  but  as  his  real  power  lay 
in  a  zealous  attack  upon  slavery,  he  found  public  life  tire 
some  in  that  period  of  calm  which  succeeded  the  turmoil  of 
1850.  At  the  expiration  of  the  32d  Congress  he  again 
retired  to  private  life  at  the  age  of  61 — an  age  when  with 
most  men  retirement  would  have  been  permanent.  With 
Stevens  it  was  merely  a  recess,  for  his  fame  as  a  political 
leader  was  yet  to  be  won. 


l6o  HISTORY  OF  THE  COMMITTEE 

As  with  Lincoln,  it  was  the  repeal  of  the  Missouri  Coirir- 
promise  in  1854  that  brought  Stevens  again  into  active 
political  life.  In  1855,  he  was  one  of  the  organizers  in 
Pennsylvania  of  the  new  Republican  party,  which  had  for 
its  purpose  resistance  to  the  further  extension  of  slavery 
in  the  territories.  He  was  a  delegate  to  the  first  Republican 
national  convention  in  1856,  and  for  the  nomination  for 
President  supported  Justice  McLean — the  anti-slavery 
member  of  the  Supreme  Court  who  rendered  a  dissenting 
opinion  in  the  famous  Dred  Scott  case.  In  1858,  Stevens 
was  again  elected  to  Congress  from  the  Lancaster  district, 
and  served  continuously  in  the  House  from  the  meeting  of 
the  36th  Congress  in  December  of  1859  to  his  death  in  1868. 

In  the  36th  Congress  Stevens  took  a  prominent  part  in 
the  debates,  and  by  the  time  of  its  expiration  in  1861  he 
was  regarded  as  one  of  the  leading  members  of  the  lower 
house.  In  the  first  session  of  that  Congress,  he  used  his 
great  powers  of  satire  and  irony  in  prodding  on  the  "  fire- 
eaters  "  from  the  South,  into  making  extreme  statements 
and  expressing  sentiments  of  disunion.  It  seems  clear  that 
at  this  time  he  understood  the  temper  of  the  southerners, 
knew  they  were  in  earnest,  and  really  desired  that  they  carry 
out  their  numerous  threats  of  secession,  though  he  pro 
fessed  to  believe  that  all  their  threats  were  mere  gasconade. 
He  said  he  did  not  blame  the  southerners  for  their  language! 
of  intimidation,  for  using  "  this  threat  of  rending  God's 
creation  from  turret  to  foundation.  All  this  is  right  in 
them,  for  they  have  tried  it  fifty  times,  and  fifty  times 
they  have  found  weak  and  recreant  tremblers  in  the  North 
who  have  been  affected  by  it  and  who  have  acted  from 
those  intimidations.  They  gfre  right,  and  I  give  them 
credit  for  repeating  with  grave  countenances  that  which 
they  have  so  often  found  to  be  effective  when  operating 


j6i]  PERSONNEL  OF  THE  COMMITTEE  I^I 

upon  timid  men."  In  his  ability  to  cause  opponents  to 
make  reckless  assertions  which  would  redound  to  the  dis 
credit  of  their  cause,  Stevens  was  a  past  grand  master.  He 
later  used  the  same  tactics  in  his  fight  with  Andrew  John 
son  over  the  question  of  reconstruction.  In  the  long  con 
test  over  organizing  the  House,  Stevens  used  all  his  talent 
to  keep  northern  representatives  from  being  frightened  by 
southern  menaces,  which  he  dubbed  "  idle  rantings  and  bar 
ren  thunders." 

During  the  second  session  of  the  36th  Congress,  after 
Lincoln  had  been  elected  and  while  the  cotton  states  were 
seceding,  Stevens  employed  all  his  powers  against  any  of 
the  proposed  compromises.  He  spoke  of  the  House  com 
mittee  of  thirty-three — one  from  each  state — as  a  "  com 
mittee  on  incubation,"  and  believed  the  time  for  compro 
mise  and  conciliation  had  passed.  He,  like  a  great  many 
other  Republicans  of  his  time,  had  used  the  platform  of  that 
party  in  1856  and  1860  which  declared  only  against  the 
further  extension  of  slavery,  merely  as  a  stepping-stone 
toward  working  up  sentiment  for  its  complete  abolition. 
Had  the  South  tamely  submitted  in  1861  and  allowed  the 
Republicans  to  carry  out  their  policy  of  prohibiting  slavery 
in  the  territories,  in  the  District  of  Columbia,  and  the  othe*r 
public  places  belonging  to  the  United  States,  there  is  no 
doubt  that  in  a  short  time,  perhaps  by  1864  or  1868,  they 
would  have  begun  an  attack  upon  slavery  in  the  states  them 
selves.  In  this  case,  however,  it  would  doubtless  have  taken 
two  or  three  generations  to  have  accomplished  its  total  abo 
lition.  Stevens  was  one  of  the  few  men  who,  at  the  begin 
ning  of  the  war,  believed  it  would  result  in  the  abolition  of 
slavery.*  He  hated  the  South,  and  while  he  believed  that 
'section  would  put  up  a  good  fight,  and  thought  the  war 

1  Woodburn,  p.  135.  2  Ibid.,  pp.  171.  172. 


!62  HISTORY  OF  THE  COMMITTEE  [ifo 

would  last  for  at  least  two  years,  he  never  had  any  serious 
doubts  as  to  the  final  results.  Therefore,  he  favored  the 
government's  taking  a  decisive  attitude  at  once,  and  really 
courted  war.  He  declared  that  the  whole  blame  for  the  war* 
rested  with  the  southerners,  that  the  challenge  was  theirs, 
and  for  his  part,  he  was  unwilling  to  make  any  humiliating' 
concessions  to  appease  them.  Soon  after  the  war  com 
menced,  Stevens  began  to  demand  the  immediate  emancipa 
tion  of  the  slaves  as  a  war  measure.  He  never  admitted 
that  it  was  not  the  purpose  of  the  North  in  waging  the  war, 
to  interfere  with  the  "  domestic  institutions  "  of  the  south 
ern  states.  He  was  one  of  the  four  representatives,  who, 
in  July  of  1861,  voted  against  the  Crittenden  resolutions 
which  defined  the  object  of  the  war  as  being  solely  the  pre 
servation  of  the  Union.1  On  August  2,  1861,  a  week  after 
the  passage  of  the  Crittenden  resolutions,  he  said:  "  God 
forbid  that  I  should  ever  agree  that. the  slaves  should  be  re 
turned  again  to  their  masters  and  that  you  should  rivet 
again  the  chains  which  you  have  once  broken."  Stevens 
was  a  strong  critic  of  Lincoln's  "  border  state  policy  "  and 
bitterly  denounced  the  President  for  overruling  military 
emancipation  by  Generals  Fremont  and  Hunter  in  1861  and 
1862.  He  regretted  the  influence  of  border-state  men  on 
the  President,  and  did  all  he  could  to  have  Blair  ousted  from 
the  Cabinet. 

Stevens  not  only  believed  that  the  negroes  should  be 
freed,  but  thought  they  should  be  armed  and  employed  in 
the  United  States  army.  Just  before  Lincoln  announced 
his  preliminary  emancipation  proclamation,  Stevens  said : 
"  I  no  longer  agree  that  this  administration  is  pursuing 
a  wise  policy.  Its  policy  should  be  to  free  the  slaves, 
enlist  and  drill  them,  and  set  them  to  shooting  their  mas- 

1  Woodburn,  pp.  171,  172.  *Ibi4.,  pp.  173,  174- 


PERSONNEL  OF  THE  COMMITTEE 

ters  if  they  do  not  submit."  After  Lincoln  issued  the  eman 
cipation  proclamation,  Stevens  began  to  support  the  admin 
istration  much  more  heartily  and  voted  for  the  renomina- 
tion  of  Lincoln  in  1864. 

It  is  Stevens'  attitude  on  reconstruction  that  principally1 
interests  us  here.  As  early  as  August  in  1861,  he  had  taken 
the  ground  that  the  people  of  the  Confederate  states  were 
public  belligerent  enemies,  and  that  the  nation  in  its  efforts! 
to  overcome  them  was  bound  only  by  the  laws  of  war  and 
the  law  of  nations.  The  Constitution  was  abrogated  with 
respect  to  the  hostile  Confederate  States  that  had  rejected 
and  repudiated  it.  Stevens  adhered  strictly  to  this  principle 
throughout  the  war.1  He  elaborated  this  principle  from 
time  to  time  during  the  progress  of  the  struggle  as  differ 
ent  questions  came  up  affecting  the  constitutional  relations 
of  the  seceded  states  to  the  United  States.  When  the  war 
was  over,  he  was  not  disposed  to  regard  them  as  states  in 
the  Union,  but  as  "  conquered  provinces."  In  a  speech  2 
delivered  in  Congress  on  December  18,  1865,  he  summar 
ized  his  opinions  on  reconstruction  and  therein  laid  down  the 
essential  reasons  why  Congress,  under  his  leadership,  re 
fused  to  adopt  the  reconstruction  policy  of  President  John 
son.  The  Confederate  States  for  four  years  were  belliger 
ents,  acknowledged  so  by  Europe  and  the  United  States. 
Mr.  Justice  Grier,  following  Vattel,  in  the  decision  in  the 
Prize  Cases?  held  that  the  rebel  states  were  belligerents  and 
the  contest  they  waged  was  a  war,  it  not  being  necessary 
that  both  the  parties  be  foreign  nations.  "  A  war  may  ex 
ist  where  one  of  the  belligerents  claims  sovereign  rights  as 

1  Woodburn,  pp.  212  et  seq. 

*  Globe,  ist  sess.,  39th  cong.,  pp.  72-75. 

1  2  Black,  666. 


HISTORY  OF  THE  COMMITTEE 

against  the  other."  The  idea  that  the  states  could  not  and 
did  not  make  war,  and  that  the  war  was  one  of  individuals, 
was  ridiculous.  Individuals  cannot  make  war,  and  to  say 
that  the  states  did  not  make  war  because  the  Constitution 
forbids  it,  was  as  foolish  as  to  say  that  A  did  not  kill  B 
because  he  could  not  have  done  so  as  the  law  forbids  it. 
Moreover,  all  the  rebel  states  themselves  maintained  they 
were  out  of  the  Union;  their  laws,  the  Confederate  gov 
ernment,  the  speeches  of  their  members  of  Congress,  and 
the  answers  of  their  government  to  propositions  of  peace, 
went  upon  the  ground  that  no  terms  would  be  considered, 
except  upon  the  prior  acknowledgment  of  the  entire  and 
permanent  independence  of  the  Confederacy.  After  this, 
to  say  that  the  United  States  has  no  right  to  treat  them  as  a, 
conquered  belligerent,  severed  from  the  Union  in  fact,  was 
not  argument  but  mockery.  The  only  question  to  be  con 
sidered  was,  whether  it  was  to  the  interest  of  the  North 
so  to  treat  them. 

But  suppose,  as  some  contend,  they  are  not  out  of  the  Union, 
but  in  it,  in  a  state  of  "  suspended  animation."  In  either  case, 
Congress  has  control  of  the  matter.  If  they  are  conquered 
provinces,  Congress  has  power  over  them  under  the  clause  of 
the  Constitution  which  declares,  "  New  states  may  be  ad 
mitted  into  the  Union."  If  they  are  states  in  the  Union  out 
of  their  proper  relation  with  it,  Congress, — i.  e.  the  Senate,  the 
House,  and  the  President  in  his  legislative  capacity, — has 
control  under  the  clause  of  the  Constitution  that  requires  the 
National  Government  "  to  guarantee  to  every  state  a  republi 
can  form  of  government."  A  joint  committee  of  both  houses 
is  justified,  for  Congress  as  a  whole  must  create  states  and 
declare  when  they  are  entitled  to  be  represented.  The  clause 
in  the  Constitution  enforcing  upon  each  house  the  duty  of 
judging  the  elections,  returns,  and  qualifications  of  its  own 

i  2  Black,  666. 


PERSONNEL  OF  THE  COMMITTEE  165 

members,  has  no  bearing  on  the  question  until  Congress  as  a 
whole  has  acted  on  their  right  to  be  represented.  Then  each 
house  must  judge  whether  the  members  presenting  themselves 
from  a  recognized  state,  possess  the  requisite  qualifications,  and 
whether  the  elections  and  returns  are  according  to  law.  The 
houses  separately  can  judge  of  nothing  else. 

The  first  duty  of  Congress  then  was  to  declare  the  con 
dition  of  these  states  and  fix  a  government  for  them.  This 
government  should  not  be  military  but  territorial ; x  for  in 
territories  Congress  may  fix  the  qualifications  for  voters. 
Voters  should  include  all  males  over  twenty-one  years  of 
age  without  regard  to  race  or  color,  who  had  not  given  aid 
or  comfort  to  the  rebellion.  Under  certain  conditions  and 
within  certain  restrictions  the  rebels  might  be  allowed  to 
participate  in  the  government.  In  the  territorial  legisla 
tures,  they  would  mingle  with  those  to  whom  Congress 
would  extend  the  franchise  (i.  e.,  the  negroes),  and  there 
learn  the  principles  of  freedom  and  democracy,  and  eat  the 
fruit  of  foul  rebellion.  Let  them  remain  in  the  position  of 
territories  until  the  loyal  states  had  amended  the  Constitm 
tion  as  they  might  see  fit.  Among  other  amendments,  Con 
gress  should  propose  to  the  states  one  for  apportioning  rep 
resentatives  according  to  voters  and  not  population,2  and 

1  Stevens  consistently  favored  a  territorial  form  of  government  for 
the  rebel  states;  this  in  spite  of  the  fact  that  he  supported  the  Recon 
struction  act  of  March  2,  1867,  which  established  military  governments. 
He  had  previously  introduced  two  bills  providing  for  territorial  gov 
ernments  which  he  was  unable  to  have  passed.     See  infra,  ch.  vii  and 
viii. 

2  If  the  negroes  should  be  allowed  to  vote  as  Stevens  proposed,  it  is 
difficult  to  see  the  reason  for  any  change  in  apportioning  representa 
tion.     He  did  not  explain  it  himself,  but  he  perhaps  feared,  what  has 
come  to  pass,  that  as  soon  as  the  southern  states  were  in  full  fellow 
ship  again,  they  would   set  about  disfranchising  the  negroes  in   one 
way  or  another.     He  did  not  propose  an  amendment  forbidding  the 
states  the  right  to  deny  the  franchise  on  account  of  race  or  color,  as 
he  did  not  believe  it  would  be  ratified  by  the  northern  states.     See 
infra,  ch.  vi. 


!66  HISTORY  OF  THE  COMMITTEE 

another  giving  the  national  government  the  right  to  levy 
export  duties,  so  that  cotton  might  be  properly  taxed.: 
These  amendments  should  not  be  submitted  to  the  present 
so-called  governments  in  the  southern  states,  as  they  were 
merely  governments  under  duress.  Finally,  Congress 
should  at  once  declare  its  power  over  the  whole  subject  of 
reconstruction.1 

Stevens  also  maintained  that  the  negroes  should  be  given 
equal  civil  rights,  and  that  something  in  a  material  way 
should  be  done  for  them.  He  had  explained  previously  what 
these  material  benefits  should  be,  and  did  not  at  this  time 
give  a  detailed  account  of  his  plan  for  confiscating  southern 
lands.  Such  confiscation,  however,  was  an  important  part 
of  his  plan  for  reconstructing  the  South,  and  though  it  was 
the  one  thing  that  he  did  not  succeed  in  accomplishing,  sol 
long  as  he  lived  he  cherished  it  and  never  gave  up  hope  that 
it  might  be  carried  out. 

Stevens'  fullest  exposition  of  his  plan  of  confiscation  was 
made  in  a  speech  at  Lancaster,  Pa.,  in  September,  i865.2 
He  figured  that  there  were  in  the  rebel  states  four  hundred 
sixty-five  million  acres  of  land.  Of  this  three  hundred 
ninety-four  million  acres  were  owned  by  70,000  persons, 
each  of  whom  possessed  more  than  two  hundred  acres.  He 
argued  that  these  three  hundred  ninety-four  million  acres 
ought  to  be  confiscated  by  the  government.  To  each  adult 
freedman  should  be  given  forty  acres,  which  approximately 
would  dispose  of  about  forty  million  acres.  The  remaining* 
three  hundred  fifty-four  million  acres  he  would  divide  into 
suitable  farms,  and  sell  to  the  highest  bidder.  Including  the 

1  The  above  is  a  brief  analysis  of  Stevens'  speech  of  December  18, 
1865,  Globe,  pp.  72-75. 

*  This  speech  was  printed  in  full  in  the  New  York  Herald  on  Decem 
ber  13,  1865.  A  fuller  discussion  and  a  partial  defense  of  Stevens' 
policy  of  confiscation  will  be  found  in  Woodburn,  ch.  xx. 


PERSONNEL  OF  THE  COMMITTEE 

city  property  it  should  bring  an  average  price  of  ten  dol 
lars  an  acre,  making  a  total  of  three  billion  five  hundred 
forty  million  dollars.  Of  this  money  he  would  invest  three 
hundred  millions  in  six  per  cent  bonds,  the  income  of  whichj 
should  go  towards  the  payment  of  pensions  to  deserving 
veterans  and  the  widows  and  orphans  of  soldiers  and  sailors 
who  had  been  killed  in  the  war.  Two  hundred  million  dol 
lars  should  be  appropriated  to  reimburse  loyal  men  in  both 
North  and  South  whose  property  had  been  destroyed  or 
damaged  during  the  war.  With  the  remaining  three  billion 
forty  million  dollars  he  would  pay  the  national  debt.  Ste 
vens  argued  that  since  all  this  property  which  was  to  be 
confiscated  was  owned  by  70,000  persons,  the  vast  ma 
jority  of  the  people  in  the  South  would  not  be  affected  by 
this  policy.  These  70,000  were  the  arch-traitors,  and  since 
they  had  caused  an  unjust  war  they  should  be  made  to  suffer 
its  consequences. 

Such  was  the  reconstruction  policy  of  the  man  who,  at 
the  opening  of  the  39th  Congress,  undertook  the  task  of 
overthrowing  the  policy  of  the  President  and  having  his 
own  substituted  therefor.  What  of  the  man  himself?  At 
this  time  Stevens  was  seventy-three  years  old,  but  as  a  cor 
respondent  for  the  Independent 1  described  him,  in  spite  of 
his  age  and  feebleness,  "  his  spirit  is  not  bated,  his  sarcasm; 
cuts  as  keenly  as  ever,  his  wit  flashes  as  brightly,  and  his 
great  intellect  seems  in  no  wise  dimmed.  His  face  in  out 
line  approaches  the  Indian  type.  The  square  perceptive 
brow,  the  deeply  set  eyes,  the  high  cheek  bones,  the  broad 
jaw  and  saturnine  mouth  are  most  marked.  The  face  in 
repose  is  stern,  but  not  savage.  Thaddeus  Stevens'  in 
evitable  sarcasm  and  wit  seem  purely  intellectual  gifts." 

1  The  Independent,  June  14,  1866;  Letters  from  a  Woman  in  Wash 
ington. 


1 68  HISTORY  OF  THE  COMMITTEE 

John  Sherman,  while  discussing  Johnson's  speech  of  Feb 
ruary  22, 1  and  trying  to  palliate  it,  said  of  Thaddeus  Ste 
vens :  "  We  must  not  forget  that  he  [Stevens]  has  shown 
violent  and  bitter  feeling  at  various  times,  and  that  he  wields 
great  influence  and  in  such  a  way  as  to  exasperate  even  a 
patient  man.  I  know  him  well — a  man  of  great  intellect, 
with  a  controlling  will,  and  possessing  the  dangerous  powe'r 
of  great  sarcasm,  which  he  wields  against  friend  and  foe, 
cutting  like  a  Damascus  blade."  Another  observer  said 
of  him :  "  Thaddeus  Stevens  has  the  courage  of  his  opin 
ions.  He  sees  plainly  that  the  end  we  must  seek  is  sure 
rather  than  swift  reconstruction,  and  he  states  clearly  the 
steps  which  he  thinks  essential  to  that  end."  3  To  the  Wash 
ington  correspondent  of  the  Nation,  he  was  the  "  inexorable! 
Thaddeus  Stevens  who  holds  the  business  of  the  House  in 
the  hollow  of  his  hand."  As  his  biographer,  Mr.  McCall, 
says:  "Before  that  day  (December  4,  1865),  Stevens  had 
been  the  leader  of  the  House  of  Representatives.  Hence 
forth  he  was  to  be  its  dictator,  and  the  leader  of  his  party 
throughout  the  country."  4 

Radical  was  the  man,  and  radical  his  policy,  that  the  Re 
publican  members  of  the  House  of  Representatives  faith 
fully  followed  from  the  beginning  of  the  struggle  over  re 
construction  until  the  President  was  completely  vanquished. 
The  principal  source,  no  doubt,  of  Stevens'  great  influence1 
was  his  ability  as  a  debater  and  his  effective  use  of  the  party 
whip.  But  to  understand  why  he  became  the  "  dictator  " 
of  his  party  in  the  lower  house,  it  should  be  remembered' 
that  this  was  an  era  essentially  revolutionary,  when  radical 

1  See  infra,  ch.  iv. 

9  Globe,  ist  sess.,  39th  cong.,  appendix,  p.  129. 

3  Harper's  Weekly,  January  6,  1866. 

4  Thaddeus  Stevens  (American  Statesman),  p.  259. 


PERSONNEL  OF  THE  COMMITTEE  ifig 

principles  enunciated  to-day,  existing  yesterday  only  in  the 
minds  of  extreme  men,  would  be  adopted  to-morrow. 

Nearly  every  new  measure  which  the  government  had 
adopted  during  the  course  of  the  war  had  been  ad 
vocated  in  advance  by  Stevens.  For  instance,  at  the 
beginning  of  secession  he  had  opposed  making  any  further 
compromise  with  the  slave  power.  In  January  of  1861, 
this  was  considered  radical,  while  in  January  of  1866,  there 
was  no  member  of  the  Republican  party  who  did  not  glory 
in  the  fact  that  no  compromise  had  been  made.  When,  in 
the  fall  of  1 86 1,  Stevens  demanded  that  the  slaves  be  eman 
cipated  as  a  war  measure,  most  of  the  members  of  his  party 
held  back,  and  yet  a  year  later  this  was  done.  When  Ste 
vens  first  advocated  arming  the  slaves  there  were  few  who 
agreed  with  him,  but  long  before  the  close  of  the  war,  thou 
sands  of  negroes  were  to  be  found  in  the  army  of  the 
United  States. 

Is  it  any  wonder,  then,  that  when  so  many  radical  meas 
ures  had  been  adopted,  and  their  adoption  proved  popular, 
that  he  who  was  the  great  Radical  of  them  all,  should  be 
looked  upon  as  the  natural  leader  of  the  Republican  party? 
So  it  \vas  that  for  better  or  for  worse,  for  weal  or  for  woe, 
the  politicians  of  that  party,  at  the  opening  of  1866,  were* 
willing  to  follow  Thaddeus  Stevens  almost  anywhere  he 
might  lead,  and  this,  in  spite  of  executive  disapproval  and 
loss  of  patronage. 

WILLIAM    PITT    FESSENDEN 

The  chairman  of  the  committee  on  the  part  of  the> 
Senate  was  William  Pitt  Fessenden,  who  thus,  in  accord 
ance  with  precedent,  became  chairman  of  the  whole  com 
mittee.  At  the  time  of  his  appointment  to  this  important 
position  he  was  already  well  known  as  a  statesman,  having 
served  continuously  as  a  senator  from  Maine  since  1854,. 


HISTORY  OF  THE  COMMITTEE  [LjO 

except  for  the  short  time  that  he  acted  as  Secretary  of  the* 
Treasury  in  the  closing  months  of  Lincoln's  first  adminis 
tration. 

Fessenden  was  born  October  16,  1806,  at  Fryeburg, 
Maine.  Truly  may  it  be  said  that  he  was  dedicated  to  poli 
tics  from  the  beginning,  for  at  his  christening  no  less  a  per 
son  than  Daniel  Webster  attended  as  godfather.  At  the  age 
of  twelve  he  entered  Bowdoin  College,  from  which  he  was 
graduated  in  1823.  He  then  took  up  the  study  of  law,  and 
in  1827  was  admitted  to  the  bar.  Two  years  later  he  moved 
to  Portland,  which  continued  to  be  his  home  for  the  rest  of 
his  life.  In  1831  he  was  elected  to  the  Maine  legislature  as 
an  anti-Jackson  representative,  and  on  the  formation  of  the 
Whig  party  he  became  identified  with  it.  Fessenden  re 
mained  in  the  legislature  for  only  one  year,  but  during  that 
time  acquired  a  reputation  as  a  clear  and  logical  thinker  as 
well  as  an  eloquent  speaker.  In  1837,  when  Daniel  Web 
ster  was  making  plans  to  capture  the  Whig  nomination  for 
President  in  1840,  he  invited  his  godson  to  accompany  him, 
on  a  political  tour  through  the  western  states.  This  invita 
tion  Fessenden  accepted,  and  the  experience  doubtless 
proved  valuable  for  him  in  his  subsequent  political  career. 
In  1840,  Fessenden  was  nominated  by  the  Whigs  to  repre 
sent  the  Portland  district  in  Congress,  and  although  Port 
land  was  usually  Democratic,  Fessenden's  own  popularity 
and  the  Whig  tidal  wave  that  carried  in  Harrison  and  Tyler, 
combined  to  bring  about  his  election.  He  served  only  one 
term  in  Congress,  and  long  before  the  close  of  the  first  ses^- 
sion  he  found  congressional  life  so  utterly  "  detestable  ''v 
that  he  determined  not  .to  become  a  candidate  for  re-election. 
Because  of  the  defection  of  Tyler  and  the  consequent  shat 
tering  of  the  Whig  program,  he  wrote :  "  As  a  member  of 
the  Whig  party  I  feel  absolutely  degraded.  I  am  ashamed! 
of  our  leaders,  and  could  not  have  deemed  it  possible  that 


PERSONNEL  OF  THE  COMMITTEE  ijI 

men  honored  with  the  confidence  of  the  people,  and  who 
have  talked  patriotism  so  loudly,  would  be  governed  by  mo^ 
tives  so  contemptible.  I  am  cured,  I  hope,  forever  of  all 
fondness  for  public  life,  and  could  I  do  so  without  forfeiting 
obligations  to  others,  would  gladly  resign."  l 

It  was  during  the  time  that  Fessenden  was  a  member  of 
the  House  of  Representatives,  that  John  Quincy  Adams 
was  attempting  to  break  down  the  "  gag  "  rule  in  regard 
to  petitions  against  slavery.  Though  Fessenden  considered 
that  Adams  sometimes  talked  too  violently  and  unwisely, 
he  determined  to  support  the  old  man  on  principle,  for  he 
said: 

The  insolence  of  these  southern  boys  is  intolerable,  and  the  sub 
serviency  of  their  northern  hirelings  should  cast  them  back 
into  their  native  insignificance.  I  am  every  day  growing  more 
of  the  opinion  that  we  must  abandon  all  differences  at  home, 
except  that  between  the  northern  and  southern  parties.  I  fear 
that  a  few  years  more  will  see  the  North  and  South  entirely 
at  issue,  and  for  one,  if  the  North  is  to  be  eternally  sacrificed 
for  the  benefit  of  slave  labor,  I  am  willing  to  see  that  day 
come,  terrible  as  it  will  be.2 

Though  Fessenden  was  not  an  abolitionist,  this  short  ex 
perience  in  Congress  enabled  him  to  perceive  that  slavery 
was  the  pernicious  institution  over  which  all  important 
political  contests  were  to  be  waged.  At  the  adjournment 
of  Congress  on  March  4,  1843,  ne  retired  from  political  life, 
firmly  convinced  that  slavery  should  be  confined  within  its 
existing  limits. 

From  this  retirement  he  was  not  called  forth  until  1854. 

1  Fessenden,  Life  of  William  Pitt  Fessenden,  vol.  i,  pp.  22,  23.  Un 
less  otherwise  stated,  this  work  is  my  source  of  information  for  all 
strictly  biographical  material  relating  to  Fessenden. 

J  Ibid. 


HISTORY  OF  THE  COMMITTEE 

At  the  very  time  that  the  Nebraska  bill  was  reported  by 
Stephen  A.  Douglas,  the  Maine  legislature  was  balloting  to 
fill  a  vacancy  in  the  United  States  Senate.  The  Whigs,  who 
nominated  Fessenden,  were  in  a  minority  in  the  legislature, 
but  among  the  Democrats  there  were  many  anti-slavery 
men  who  would  not  support  the  regular  Democratic  nomi 
nee,  and  after  several  futile  ballots  the  anti-slavery  Demo 
crats  combined  with  the  Whigs  and  elected  Fessenden.  He 
arrived  in  Washington  just  in  time  to  take  part  in  the  de 
bate  on  the  Kansas-Nebraska  bill.  His  maiden  speech  an 
nounced  the  arrival  of  a  "  new  champion,"  as  Sumner  ex 
pressed  it,  in  the  fight  against  the  extension  of  slavery.1 

With  the  dissolution  of  the  Whig  party,  Fessenden,  as  a 
matter  of  course,  became  identified  with  the  Republicans, 
and  took  an  active  part  in  the  campaigns  of  1856  and  1860. 
When  the  southern  states  began  to  secede,  Fessenden,  like 
Thaddeus  Stevens,  was  opposed  to  making  any  concessions 
to  the  slave  power  in  order  to  prevent  disunion.  Unlike 
Stevens,  however,  he  does  not  seem  to  have  appreciated  the 
seriousness  of  the  situation,  as  he  continued  to  believe  until 
the  secession  of  South  Carolina  that  the  whole  thing  was  a 
"  kind  of  flourish."  2  Even  as  late  as  December  22,  1860, 
he  wrote:  "  Any  man  with  half  an  eye  can  see  what  all  this 
means.  It  [secession]  was  begun  for  the  purpose  of  fright 
ening  us  into  an  abandonment  of  our  position,  thus  strength 
ening  the  South  and  disgracing  the  Republicans." 

Moreover,  it  is  doubtful  whether  Fessenden  expected  the 
government  to  use  force  in  preserving  its  integrity,  for  in 
the  same  letter  he  wrote:  "  If  the  Union  can  only  be  saved 
by  acknowledging  the  power  of  a  minority  to  coerce  the 
majority  through  fear  of  disruption,  I  am  ready  to  part 
company  with  the  slave  states."  a  A  few  weeks  later,  how- 

1  Fessenden,  op.  cit.,  vol.  i,  p.  33. 

2  Ibid.,  p.  118.  3  Ibid.,  p.  119. 


PERSONNEL  OF  THE  COMMITTEE 

ever,  after  the  Gulf  states  had  seceded,  he  began  to  realize 
that  the  South  was  in  earnest,  and  also  came  to  believe 
that  war  was  probable.1 

When  the  war  was  begun,  Fessenden  was  made  chair 
man  of  the  Senate  finance  committee,  and  served  in  that 
capacity  until  July,  1864,  when,  upon  the  resignation  of  S. 
P.  Chase  as  Secretary  of  the  Treasury,  Lincoln  appointed 
him  to  fill  the  vacancy.  Like  almost  everybody  else  in  his 
own  time,  as  well  as  before  and  since,  Fessenden  knew  very 
little  about  the  question  of  finance,  but  differed  from  most 
of  the  financial  quidnuncs  of  all  ages  in  that  he  was  honest 
enough  to  confess  his  own  ignorance.2  Upon  the  expiration 
of  Lincoln's  first  term,  Fessenden  resigned  his  place  in  the 
Cabinet  and  again  took  his  seat  in  the  Senate,  where  he 
served  until  his  death  in  1869. 

During  the  war  Fessenden  had  considered  the  discussion 
concerning  reconstruction  premature.  He  was  not  favor 
ably  disposed  toward  the  Wade-Davis  scheme,  and  as  for 
the  President's  attempt  in  Louisiana  and  Arkansas,  he 
was  of  the  opinion  that  it  would  have  been  better  to 
have  waited  until  the  majority  of  the  people  in  those  states 
had  returned  to  their  allegiance.  He  therefore  voted  against 
the  admission  of  the  senators  from  Arkansas  in  the  springs 
of  1864,  and  at  the  same  time  expressed  the  opinion  that 
the  question  of  what  constitutes  a  state  to  be  represented 
in  Congress,  should  properly  be  settled  by  Congress  and 
could  not  be  settled  by  any  other  authority.3 

Fessenden  believed  that  Johnson  had  made  a  great  mis 
take  in  attempting  to  restore  the  rebel  states  without  con- 

1  Fessenden,  op.  cit.,  p.  125. 

2  Globe,  February  12,  1862,  p.  756;  cited  in  Woodburn,  Life  of  Thad- 
deus  Stevens,  p.  248. 

8  Fessenden,  Life  of  Fessenden,  vol.  ii,  pp.  10  and  n. 


174  HISTORY  OF  THE  COMMITTEE  [^74 

suiting  Congress,  but  when  that  body  met  in  December  of 
1865,  he  was  not  among  those  who  desired  a  breach  with 
the  President,  for  he  thought  that  a  quarrel  might  be  fatal 
to  the  party  and  disastrous  to  the  country.1  He  was  firmly 
convinced  that  additional  guarantees  should  be  demanded 
from  the  rebel  states,  and  he  was  unwilling  to  accept  what 
the  President  had  done  as  a  finality,  but  was  almost  equally1 
unwilling  to  allow  the  process  of  reconstruction  to  be  con 
trolled  by  the  radicals,  as  he  thought  it  would  be  in  case 
the  breach  were  made.  He  therefore  desired,  and  at  first 
hoped,  that  the  President  would  work  in  harmony  with  the1 
conservative  Republicans,  to  the  end  that  moderate  though 
sound  measures  of  reconstruction  might  be  enacted.  The 
following  extracts  from  personal  letters  that  he  wrote,  soon 
after  being  made  chairman  of  the  committee,  will  give  some 
idea  of  the  dilemma  in  which  Fessenden  felt  himself  to  be; 
and  some  of  his  hopes  and  fears  for  the  future  may  be  seen. 

The  committee  on  reconstruction  has  a  severe  and  onerous 
duty  to  perform,  which  must  for  some  weeks  occupy  a  great 
share  of  my  time  and  attention.  It  is  a  difficult  subject  to 
deal  with  for  it  has  become  much  complicated  by  the  steps  al 
ready  taken.  Yet  I  think  I  see  the  way  through  it  if  Congress 
stands  firm,  as  I  think  it  will.  We  are  embarrassed  by  men 
of  extreme  opinions  who  think  all  ways  but  their  own  are 
necessarily  bad  ways,  and  by  others  who  cannot  wait  till  the 
proper  time,  through  fear  lest  their  own  names  may  not  be 
sufficiently  known  in  connection  with  the  work  to  be  done. 
The  committee  has  a  large  majority  of  thorough  men  who  are 
resolved  that  ample  security  shall  attend  any  restoration  of  the 
insurgent  states,  come  what  will,  while  they  desire,  if  possible, 
to'  avoid  a  division  between  Congress  and  the  executive,  which 
could  only  result  in  unmixed  evil.  My  belief  is  still  that  the 
President  is  as  anxious  as  we  are  on  that  point ;  and  if  meddle- 

1  Fessenden,  op.  cit.,  p.  13. 


PERSONNEL  OF  THE  COMMITTEE 

some  people  will  leave  him  in  peace,  I  think  he  would  try  hard 
to  establish  matters  on  a  firm  and  safe  basis.  He  manifests  no 
desire  to  interfere  with  the  proper  prerogatives  of  Congress, 
and  appears  willing  to  yield  much  to  its  opinions.1 

Writing  on  the  same  day — December  24,  1865 — he  said: 

I  am  placed  at  the  head  of  the  committee  on  reconstruction, 
and  this,  besides  its  delicacy  will  be  a  position  involving  very 
great  labor  and  requiring  great  care  and  circumspection.  I 
could  not  decline  it  any  more  than  I  could  decline  the  Treas 
ury.  Mr.  Sumner  was  very  anxious  for  the  place,  but,  stand 
ing  as  he  does  before  the  country,  and  committed  to  the  most 
ultra  views,  even  his  friends  declined  to  support  him,  and 
almost  to  a  man  fixed  upon  me.  Luckily,  I  had  marked  out  my 
line,  and  everybody  understands  where  I  am.  I  think  I  can 
see  my  way  through,  and  if  Sumner  and  Stevens  and  a  few 
other  such  men  do  not  embroil  us  with  the  President,  matters 
can  be  satisfactorily  arranged — satisfactorily,  I  mean,  to  the 
great  bulk  of  Union  men  throughout  the  states.2 

Then  again  on  January  14,  1866,  he  writes  in  the  same 
strain : 

It  is  very  unlucky  for  me  that  I  have  been  forced  to  take  hold 
of  this  reconstruction  business.  As  I  anticipated,  the  work  of 
the  finance  committee  will  give  me  no  trouble.  This,  however, 
engrosses  me,  and  with  all  other  matters  makes  the  burden 
heavy.  In  addition  to  all  other  difficulties,  the  work  of  keep 
ing  the  peace  between  the  President  and  those  who  wish  to 
quarrel  with  him,  aided  as  they  are  by  those  who  wish  him 
to  quarrel  with  us,  is  a  most  difficult  undertaking.  The  fools 
are  not  all  dead,  you  know.  I  hope  we  shall  be  able  to  put 
things  upon  a  sound  basis.  That  must  be  done,  quarrel  or  no 
quarrel,  but  I  hope  to  avoid  the  necessity.3 

1  Fessenden,  op.  cit.,  p.  18. 

2  Ibid.,  p.  20.  8  ibid.,  p.  21. 


HISTORY  OF  THE  COMMITTEE 

Thus  the  position  of  Fessenden,  who  was  typical  of  the 
conservative  Republican  senators,  is  clear.  He  was  anxious 
to  avoid  a  breach  with  the  President,  and  had  Johnson  been 
the  least  bit  compromising  or  tactful,  there  is  no  doubt  that 
the  process  of  reconstruction  would  not  have  fallen,  as  it 
eventually  did,  into  the  hands  of  the  extreme  radicals.  As 
it  was,  when  Johnson  placed  himself  in  opposition  to  pro 
posals  designed  to  protect  the  civil  rights  of  the  negroes, 
and  showed  himself  out  of  sympathy  with  measures  which 
tended  to  strengthen  the  authority  of  the  National  Govern 
ment,  and  especially  when  he  began  to  resent  any  suggestion, 
that  there  was  anything  more  to  be  done  in  the  matter  of 
reconstruction,  and  that  a  Congress  in  which  the  southern 
states  were  not  represented,  could  not  with  propriety  legis 
late  for  those  states,1  Fessenden  lost  all  patience  with  him 
and  no  longer  had  any  hope  for  cooperation  between  the 
President  and  the  conservatives. 

It  has  been  said  that  Fessenden,  during  the  first  session 
of  the  39th  Congress,  was  able  to  hold  the  Republican  mem 
bers  of  the  committee  to  a  comparatively  moderate  policy! 
of  reconstruction ;  and  that  to  him  was  chiefly  due  the  credit 
for  perfecting  the  fourteenth  amendment.2  As  a  matter  of 
fact,  the  record  does  not  bear  out  this  assertion,  for  the 
radicals  were  deterred  from  proposing  anything  more  ex 
treme  than  the  fourteenth  amendment,  not  by  Fessenden 
and  the  moderates,  but  by  the  fear  that  they  would  not  be 
sustained  by  the  people.  Fessenden's  own  attitude  toward 
reconstruction,  and  his  part  in  it,  will  be  discussed  some 
what  in  succeeding  chapters,  but  it  may  be  well  to  point  out 
here  what  he  preferred.  Fessenden  always  believed  that 

1  Johnson  made  this  point  in  his  veto  of  the  Freedmen's   Bureau 
bill,  February  20.     See  infra,  ch.  iv. 

2  Rhodes,  vol.  v,  p.  599. 


PERSONNEL  OF  THE  COMMITTEE 

the  people  of  wealth  and  intelligence  in  the  southern  states 
would  eventually  rule  them,  and  he  had  none  of  that  faith 
which  so  obsessed  his  "  furious  radical  friends  "  as  to  cause 
them  to  believe  that  they  could  secure  the  votes  of  all  those 
states  through  the  aid  of  the  negroes.1  It  will  be  seen  in 
the  succeeding  chapter  2  that  he  supported  a  resolution  pro 
viding  that  any  distinction  made  in  civil  or  political  privi 
leges  on  account  of  race  or  color  should  be  inoperative  and 
void.  He  would  then,  after  offering  them  this  simple  propo 
sition,  have  continued  the  southern  states  under  military 
control,  and  let  them  remain  outside  the  Union  until  they 
chose  to  accept  it.3  After  making  such  a  clear  avowal  of  a 
principle  which  meant  the  giving  of  the  suffrage  to  the 
negroes  on  an  equal  basis  with  the  whites,  one  would  be 
inclined  to  think  that  Fessenden  should  be  classed  among 
the  radicals.  Such,  however,  is  not  the  case,  for  negro  suf 
frage  in  itself  was  not  wrong,  as  some  writers  have  seemed 
to  think,  and  the  calamity  which  accompanied  it  was  due 
to  the  fact  that  the  Reconstruction  acts  of  1867  to°k  the 
machinery  of  government  out  of  the  hands  of  the  men  who 
had  formerly  controlled  it,  and  put  it  into  the  hands  of  un 
scrupulous  persons  who  depended  upon  the  credulity  and 
ignorance  of  the  negroes  for  political  support.4  This  was  a 
vastly  different  thing  from  what  Fessenden  proposed.  He 

1  See  letter  of  Fessenden  to  F.  H.  Morse;  Fessenden,  Life  of  Fessen 
den,  vol.  ii,  p.  306.    In  August,  1869,  just  a  few  weeks  before  his  death, 
Fessenden    wrote   to    his    friend    Senator    Grimes:    "The    election    in 
Tennessee,  the  result  of  which  you  will  know  before  this  reaches  you, 
is,  in  my  judgment,  but  an  indication  of  what  we  must  expect  in  most 
of  the  rebel  states  at  the  next  Presidential  elections   [that  is,   1872]. 
The  result  there,  as  in  Virginia,  is  no  more  than  any  man  of  ordinary 
sagacity  must  have  foreseen.    I  both  foresaw  and  foretold  it." 

2  See  infra,  ch.  iii. 

1  Fessenden,  Life  of  Fessenden,  vol.  ii,  pp.  23,  24. 
4  Cf.  Rhodes,  vol.  vi,  ch.  i. 


HISTORY  OF  THE  COMMITTEE 

would  have  said  to  the  governing  classes  in  the  South :  "You 
must  extend  to  the  negroes  civil  and  political  rights  on  an 
equality  with  yourselves;  you  may  make  any  property  or 
educational  qualifications  for  voting  so  long  as  these  quali 
fications  operate  equally  on  whites  and  blacks  alike;  and 
until  you  ratify  an  amendment  to  the  Federal  Constitution 
providing  for  equal  civil  and  political  rights  and  change 
your  state  constitutions  and  laws  in  conformity  therewith, 
you  must  remain  unrepresented  in  Congress,  and  subject  to 
the  military  jurisdiction  of  the  United  States  Govern 
ment."  x  There  was  no  party  politics  in  this,  for  Fessenden 
did  not  expect  that  any  considerable  number  of  Republican 
representatives  would  be  returned  to  Congress  from  the 
South  under  his  proposed  amendment.  But  he  did  not 
think  that  the  southern  states  would  accept  his  proposal 
before  the  election  of  1868,  which  would  therefore  result 
in  a  Republican  victory.  That  they  would  accept  it,  sooner 
or  later,  however,  he  was  firmly  convinced.2  Of  course  this 
amendment  proposed  by  Fessenden  was  not  accepted  by  his 
associates,  not,  however,  because  of  its  radicalism,  but  be 
cause  it  was  not  a  good  party  measure.  Fessenden  was  a 
statesman;  his  associates  were  mere  politicians. 

Fessenden  supported  the  fourteenth  amendment  and  was 
very  much  disappointed  when,  in  the  second  session  of  the 
39th  Congress,  the  radicals  would  not  let  it  stand  as  a  per 
manent  basis  of  reconstruction,  and  were  unwilling  to  wait 
until  the  southern  states  ratified  it,  as  Fessenden  thought 
eventually  they  would  do.  Writing  of  this  matter  in  the 
fall  of  1868,  Fessenden  said:  "  I  got  my  name  of  conserva 
tive  by  advising  against  the  Reconstruction  act.  It  seemed 
to  me,  that  when  we  had  proposed  the  fourteenth  amendr 

1  Fessenden,  Life  of  Fessenden,  vol.  ii,  pp.  23,  24,  306. 

2  Ibid. 


I79]  PERSONNEL  OF  THE  COMMITTEE  I79 

ment,  the  rebel  states  had  rejected  it,  and  we  had  provided 
military  protection  for  our  friends,  enough  was  done  by  Con 
gress  towards  reconstruction,  and  we  had  better  leave  the 
matter  where  it  was  until  the  people  of  those  states  askedi 
for  admission  in  proper  form."  x  Fessenden,  though  he 
advised  against  the  Reconstruction  acts,  did  not  vote  against 
them,  as  to  have  done  so  would  have  caused  the  radicals  to 
read  him  out  of  the  party.  In  fact  they  tried  to  do  so  as  it 
was,2  because  from  this  time  on  he  opposed  most  of  their 
plans  in  their  war  on  Andrew  Johnson.  For  instance,  he 
thought  a  continuous  session  of  Congress  unnecessary; 3  he 
refused  to  vote  against  confirming  every  non-Republican 
nominated  by  the  President  for  public  office;  he  defended 
Secretary  of  the  Treasury  McCulloch  at  a  time  when  to 
speak  kindly  of  any  Cabinet  member  except  Stanton  was 
considered  treachery  to  the  "cause;"  he  did  not  vote  for  the 
Tenure  of  Office  bill  or  for  the  resolution  declaring  the  act 
of  the  President  in  removing  Stanton,  illegal.4  This  was  a 
trying  year  for  Fessenden,  and  though  outwardly  he  main 
tained  cordial  relations  with  his  radical  colleagues,  yet  priv 
ately  he  denounced  them  and  their  schemes  in  no  uncertain 
terms.  So  weary  was  he  of  it  all,  that  he  would  have  re 
signed  his  position  in  the  Senate,  could  he  have  done  so 
with  honor.5  "  I  am  becoming  disgusted  with  public  life," 
he  wrote  to  one  of  his  friends.  "  Treachery  on  the  one 
hand  and  folly  on  the  other  have  almost  disheartened  me. 

1  Fessenden,  op.  cit.,  p.  306.    See  ibid.,  p.  65. 

2  See  ibid.,  pp.  135  et  seq.,  for  attacks  by  Chandler  and  Sumner  upon 
Fessenden  because  of  his  "  conservatism."    These  and  other  men  at 
tempted  to  destroy  Fessenden  as  they  had  destroyed  Cowan,  Doolittle 
and  Dixon,  by  forcing  him  into  the  party  of  the  President. 

2  Ibid.,  p.  127. 

4  Ibid.,  pp.  154,  155. 

5  Ibid. 


HISTORY  OF  THE  COMMITTEE 

We  are  doing  some  very  foolish  things  in  Congress,  and 
others  still  more  foolish  are  attempted.  The  truth  is,  we 
are  disgusting  all  sensible  people  very  fast.  The  effort  to 
impeach  the  President  will  fail  as  the  whole  thing  is  mere 
madness."  x 

In  the  eyes  of  his  radical  colleagues,  Fessenden  was 
guilty  of  the  sum  of  all  infamy  when  he,  acting  with 
six  conservative  associates,  voted  for  the  acquittal  of  An 
drew  Johnson,  and  thus  prevented  his  removal  from  office.3 
For  this  he  was  roundly  denounced.2  Fessenden,  however, 
voted  in  accordance  with  what  he  considered  the  strict  dis 
charge  of  his  duty.  Soon  after  the  impeachment  trial  was 
over,  he  wrote  to  his  son :  'The  satisfaction  of  knowing  that 
I  have  acted  from  the  purest  motives,  and  a  devotion  to  the 
honor  and  best  good  of  my  country,  regardless  of  my  own 
personal  interest  and  comfort,  cannot  be  taken  away  from 
me.  The  whole  thing,  however,  has  made  me  sick  at  heart. 
I  have  seen  in  the  Senate  so  much  of  meanness,  such  utter 
want  of  conscientiousness,  such  base  cowardice,  even  among 
men  calling  themselves  Christians,  that  I  almost  despair  of 
the  future,  and  when  I  look  around  me  and  see  what  the 
people  are,  how  easily  misled,  how  willing  to  be  both  unjust: 
and  ungenerous,  I  am  surprised  that  anybody  should  be 
willing  to  render  them  an  honest  service."  z 

There  was  much  talk  to  the  effect  that  the  National  Re 
publican  convention,  which  met  in  the  interval  between  the 
first  and  second  vote  in  the  Senate,  would  read  Fessenden 
and  the  other  six  Republicans  who  voted  for  the  acquittal  of 
Johnson,  out  of  the  party.  It  did  nothing  of  the  sort,  how 
ever,  but  for  a  while  Fessenden  was  in  doubt  as  to  whether 

1  Fessenden,  op,  cit.,  p.  129. 

2  Ibid.,  p.  207,  et  seq. 
8  Ibid.,  p.  222. 


PERSONNEL  OF  THE  COMMITTEE  jgi 

he  desired  to  stay  in  a  party  which  had  treated  him  so  ill. 
The  reaction  in  public  opinion  which  followed  the  impeach 
ment  trial,  led  many  Republicans  to  believe  that  the  "seven" 
had  saved  the  party  from  utter  ruin.  A  large  number  of 
Republicans,  some  of  whom  had  formerly  advocated  the 
conviction  of  the  President,  wrote  Fessenden  and  congratu 
lated  him  upon  the  stand  he  had  taken.1  This,  together 
with  the  more  satisfactory  stand  taken  by  the  Republicans 
on  the  money  question  in  the  presidential  campaign  of  1868, 
caused  Fessenden  to  conclude  actively  to  support  the  can 
didate  of  that  party.2  He  considered  that  the  Democratic 
doctrine  of  paying  the  bonds  of  the  United  States  in  green 
backs  was  dishonest,  and  was  the  essence  of  repudiation.* 
Moreover,  while  he  was  not  in  sympathy  with  reconstruc 
tion  as  carried  on  by  the  radicals,  he  did  not  believe  that; 
what  had  been  done  should  be  undone  as  the  Democrats  pro 
posed.  He  therefore  entered  the  campaign,  and  rendered 
such  valuable  service  to  the  Republicans,  that  by  the  time 
Congress  met  in  December,  he  had  succeeded  in  reinstating4 
himself  in  the  good  graces  of  the  party.  It  was  even  sug 
gested  that  Fessenden  might  be  appointed  Secretary  of  the 
Treasury  by  Grant,  but  however  excellent  such  an  appoint 
ment  might  have  been,  it  was  not  made  on  account  of  his 
poor  health.  Fessenden  was  never  again  active  in  politics, 
and  his  career  was  ended  by  death  in  September,  1869. 

Before  closing  the  account  of  Fessenden  something 
should  be  said  of  the  personality  of  the  man  who,  though1 
comparatively  neglected  by  the  historians  of  the  Civil  War 
and  Reconstruction  period,  was  nevertheless,  one  of  the 
three  or  four  ablest  and  most  farsighted  statesmen  of  his 

1  Fessenden,  op.  cit.,  pp.  227  et  seq. 

2  Ibid.,  ch.  xi. 

3  Ibid.t  pp.  300,  308. 


HISTORY  OF  THE  COMMITTEE 

time.  For  instance,  Charles  Sumner,  whose  service  in  the 
Senate  was  contemporaneous  with  Fessenden,  is  very  much 
better  known,  though  a  comparison  of  the  two  men  shows 
Fessenden  to  be  very  much  the  superior  in  practical  common 
sense,  and  quite  the  equal  of  Sumner  in  point  of  intellect. 
Both  men  wTere  idealists,  but  Sumner  was  never  willing  to 
yield  one  iota  of  his  ideal  for  the  sake  of  accomplishing  al 
practical  piece  of  legislation,  even  though  it  should  tend  in 
the  general  direction  of  the  end  which  he  desired  to  accom 
plish.  When  thoroughly  exasperated  with  Sumner's  ob 
stinacy,  Fessenden  exclaimed :  "  My  constituents  did  not 
send  me  here  to  philosophize.  They  sent  me  here  to  act,  to 
find  out,  if  I  could,  what  is  best,  and  to  do  it,  and  they  are 
not  so  short-sighted  as  to  resolve  that  if  they  cannot  do  what 
they  would,  therefore  they  will  do  nothing."  *  Theodore 
Tilton,  an  extreme  radical,  and  somewhat  unfriendly 
towards  Fessenden,  said  of  him :  "  I  believe  that  on  the 
whole  Fessenden  has  more  continuous  influence  in  the  Sen 
ate  than  belongs  to  any  other  senator.  He  is  the  best  de 
bater  in  the  body — a  complete  parliamentarian — a  recog 
nized  authority  on  many  and  various  subjects  of  legislation 
and  an  incorruptible  man.  If  he  were  less  conservative  and 
more  bold,  he  would  approach  my  ideal  of  an  American 
legislator."  Everybody  who  knew  Fessenden,  testified  to 
his  ability  as  a  debater,  to  his  intellectual  acumen,  and  to  his 
far-seeing  statesmanship,  as  well  as  to  his  honesty,  straight 
forwardness,  and  high  character.  Himself  of  absolute  sin 
cerity  and  integrity,  he  was  almost  petulant  in  opposition  to 
sentimentality  and  rhetoric,  and  had  no  sympathy  with  those 
politicians  who  attempted  to  win  popularity  by  vituperating 
unpopular  opponents.  The  delicate  task  of  reorganization 

1  Globe,  ist  sess.,  3pth  cong.,  p.  707. 

2  Editorial  in  the  Independent,  April  12,  1866. 


PERSONNEL  OF  THE  COMMITTEE 

should  have  been  left  to  men  who  possessed  the  qualities  of 
firmness  and  forbearance,  of  prudence  and  conciliation,  of 
faith  and  patience.  Such  qualities  Fessenden  possessed  in 
a  high  degree,  while  to  Stevens,  his  eminent  colleague  on 
the  committee  they  were  foreign,  and  as  so  often  happens, 
the  task  was  given  to  the  man  least  fitted  for  it. 

Of  the  remaining  thirteen  members  of  the  committee  only 
three  or  four  exercised  any  perceptible  influence  on  the 
course  of  reconstruction,  and  even  they  were  of  but  little 
importance  in  comparison  with  Stevens  and  Fessenden.  Ac 
cordingly  on  account  of  this  fact,  and  because  of  lack  of 
space,  only  a  brief  account  of  each  can  be  given  here.1 

JOHN  A.   BINGHAM 

The  chief  contribution  of  John  A.  Bingham  to  congres 
sional  reconstruction  is  that  part  of  the  fourteenth  amend-  j 
ment  which  provides  for  equality  of  civil  rights  to  all  citi-  \ 
zens  of  the  United  States.2  He  was  born  in  Mercer,  Penn 
sylvania  in  1815,  but  early  in  his  life  his  parents  removed  to 
Ohio.  After  spending  a  couple  of  years  at  Franklin  Col 
lege,  he  took  up  the  study  of  law  and  was  admitted  to  the 
bar  in  1840.  This  was  the  year  of  the  famous  "  log  cabin, 
hard  cider "  Presidential  campaign,  and  young  Bingham 
took  part  in  it  as  an  active  supporter  of  the  Whig  ticket. 
In  1848,  he  was  made  a  delegate  to  the  national  Whig  con 
vention  at  Philadelphia,  where  he  made  a  fruitless  effort  to 
have  his  party  take  a  bold  and  unequivocal  stand  against  the 
further  extension  of  slavery  into  the  territories.  In  1854, 

1  My  biographical  notices  of  the  members  of  the  committee  are  here 
given  in  the  order  of  what  seems  to  have  been  the  relative  importance 
of  their  contributions  to  the  reconstruction  measures  of  the  39th  Con 
gress,  and  not  according  to  the  whole  life  work  of  each. 
2  See  infra,  ch.  iii  and  ch.  vi. 


1 84  HISTORY  OF  THE  COMMITTEE 

he  was  elected  to  Congress  as  a  Republican,  and,  with  the 
exception  of  one  term,  served  continuously  until  1873. 
Having  temporarily  lost  his  seat  in  Congress  because  of  the 
Democratic  reaction  of  1862,  he  was  appointed  in  1863  by 
Lincoln  as  judge  advocate  in  the  army  and  later  as  solicitor 
of  the  court  of  claims.  He  came  conspicuously  before  the 
public  in  1865,  when  he  acted  as  special  judge  advocate  in 
the  trial  of  the  assassins  of  President  Lincoln.  From  his 
re-entrance  into  the  House  of  Representatives  in  1865  to 
the  termination  of  his  career  in  that  body,  he  was  regarded! 
as  among  the  five  or  six  leading  Republican  members.  He 
failed  of  re-election  in  1872,  but  was  solaced  by  an  appoint-* 
ment  the  next  year  as  minister  to  Japan.  This  position  he 
held  until  1885,  when  he  was  recalled  by  President  Cleve^ 
land.  He  died  in  1900  at  his  home  in  Cadiz,  Ohio.1 

In  his  attitude  on  reconstruction,  Bingham  is  to  be  classed 
with  Fessenden  rather  than  with  Stevens.  Like  Fessenden, 
he  wished  to  avoid  a  breach  with  the  President,  but  he  was 
unwilling  to  sacrifice  his  principles  for  the  sake  of  harmony. 
As  has  been  said,  he  particularly  desired  to  have  the  civil 
rights  of  the  individual  put  into  the  special  keeping  of  the 
National  Government,  and  it  is  not  too  much  to  say  that 
had  it  not  been  for  his  untiring  efforts  the  provision  for 
nationalizing  civil  rights  would  not  have  found  a  place  in 
the  fourteenth  amendment.  In  the  second  session  of  the 
39th  Congress,  Bingham  bitterly  opposed  and  denounced 
the  radical  members  of  his  party  because  of  their  abandon 
ment  of  the  fourteenth  amendment  as  the  rock  of  the  con 
gressional  reconstruction  policy.  Party  ties  were  too  strong, 
however,  for  him  to  oppose  the  party  decrees,  so  he  finally 

1  Memorial  address  of  Senator  J.  B.  Foraker,  Cadiz,  Ohio,  1901 ; 
Ohio  Archeological  and  Historical  Society  Publications,  vol.  x,  pp. 
33I-3SI-  Also,  Appleton's  Cyclopedia  of  American  Biography. 


PERSONNEL  OF  THE  COMMITTEE        ^5 

voted  for  the  Reconstruction  bill.  At  first,  he  was  opposed 
to  the  impeachment  of  Andrew  Johnson,  which  brought 
down  upon  him  the  wrath  of  Benjamin  F.  Butler,  and  feud 
existed  between  the  two  for  the  remainder  of  Bingham's 
career  in  Congress.  When  the  Senate  passed  the  resolu 
tion  declaring  illegal  Johnson's  removal  of  Stanton,  Bing- 
ham  was  no  longer  able  to  hold  out  against  what  he  had 
formerly  termed  the  impeachment  folly,  and  like  every 
other  member  of  his  party  voted  for  impeachment.  It  was 
in  special  recognition  of  his  great  legal  ability  that  in  spite 
of  his  conservative  tendency,  he  was  elected  as  one  of  the 
board  of  managers  for  the  prosecution  of  the  President, 
and  made  one  of  the  best  legal  arguments  on  his  side  of  the 
case.  Bingham  was  a  man  of  intense  nervous  force,  great 
intellect,  powerful  in  argument  and  masterful  in  speech,  but 
his  personality  prevented  him  from  ever  becoming  a  popu 
lar  idol. 

ROSCOE  CONKLING 

With  the  possible  exception  of  Thaddeus  Stevens,  Ros-i 
coe  Conkling  is  the  best  known  at  the  present  day  of  the 
members  of  the  committee.  Though  he  took  quite  an  im 
portant  part  in  reconstruction,  his  principal  title  to  fame  is 
derived  from  the  part  played  by  him  in  politics,  from  the  in 
auguration  of  Grant  as  President  until  his  resignation  from 
the  Senate  in  1881,  occasioned  by  his  difference  with  Presi 
dent  Garfield  over  New  York  patronage.  Conkling  was 
born  at  Albany,  New  York,  in  1829,  but  when  he  was  only 
nine  years  old,  his  father,  a  United  States  district  judge, 
moved  to  Auburn.  His  education  extended  only  through 
high  school,  as  "  his  impatience  to  begin  the  battle  of  life 
was  such  that  he  declined  to  enter  upon  a  collegiate  course) 
of  study."  *  In  1846,  he  removed  to  Utica,  studied  law  in 

1  Conkling,  Life  and  Letters  of  Roscoe  Conkling,  p.  14.  Unless  other 
wise  stated,  this  biography  is  my  authority  for  all  the  facts  concerning 
Conkling's  life. 


1 86  HISTORY  OF  THE  COMMITTEE 

the  office  of  two  of  the  best-known  attorneys  in  that  city, 
and  in  1850,  when  only  twenty-one  years  old,  was  admitted 
to  the  bar.  At  the  same  time  he  entered  politics,  and  after 
serving  as  district  attorney  and  mayor  of  Utica,  he  was 
elected  in  1858  to  Congress.  In  politics  he  had  been  a  free- 
soil  Whig  and  naturally  by  this  time  had  become  identified 
with  the  Republican  party.  He  served  in  the  House  from 
1859  to  1863,  and  from  1865  to  1867.  In  the  latter  year 
he  was  elected  to  the  Senate,  where  he  served  until  1881. 
He  was  offered  the  position  of  Chief  Justice  by  President 
Grant  in  November,  1873,  in  succession  to  Salmon  P. 
Chase,  but  declined  it.  "  I  could  not  take  the  place,  for  I 
would  be  forever  gnawing  my  chains,"  he  said  in  explana.- 
tion  of  his  declinature.  During  the  whole  of  Grant's  ad 
ministration,  it  is  no  exaggeration  to  say  that  Roscoe  Conk- 
ling  was  the  power  behind  the  throne. 

During  the  last  seven  years  of  his  life  (i 881-88),  he  en 
gaged  in  the  practice  of  law  in  New  York  City,  usually  act 
ing  as  counsel  for  large  commercial  and  transportation  com 
panies. 

It  was  during  his  first  four  years  of  service  in  the  House 
that  Conkling  won  a  reputation  as  an  orator,  and,  barring 
Thaddeus  Stevens,  who  in  prominence  was  head  and 
shoulders  above  every  other  member,  Conkling  was  recog 
nized,  along  with  Garfield,  Elaine,  and  Bingham,  as  one  of 
the  ablest  four  men  in  that  body.  Though  Conkling  dif 
fered  from  Thaddeus  Stevens  in  matters  of  finance,  and 
voted  against  the  legal  tender  bill  in  1862,  he  was  a  protege 
and  favorite  of  Stevens,  and  during  this  early  period  of 
his  public  career,  generally  took  his  cue  in  matters  concern-, 
ing  the  South  from  that  ancient  radical.  Thus  when  Conk 
ling  entered  the  39th  Congress  in  1865,  Stevens  secured  for 
him  a  place  on  the  joint  committee  on  reconstruction.  Here* 
his  chief  service  was  rendered  in  drawing  up,  defending, 


PERSONNEL  OF  THE  COMMITTEE 

and  expounding  the  political  theory  of  that  part  of  the  four 
teenth  amendment  which  concerns  the  basis  of  representa 
tion.1  He  was  also  of  service  in  perfecting  the  language  of 
other  bills  and  resolutions  for  amending  the  Constitution 
which  emanated  from  his  colleagues  on  the  committee.2 
Conkling  did  not  favor  Bingham's  pet  proposition  (section 
i  of  the  fourteenth  amendment),  though  in  later  days,  when 
arguing  great  corporation  cases  before  the  Supreme  Court, 
he  was  instrumental  in  having  that  tribunal  take  the  ground 
that  the  provision  of  the  fourteenth  amendment  which  for 
bids  a  state  to  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws,  can  be  applied  to  the  protec 
tion  of  corporations  in  the  matter  of  excessive  taxation.3 

When  one  reviews  Roscoe  Conkling's  life  as  a  whole,  it 
is  impossible  to  feel  that  the  claim  made  by  himself  and 
echoed  by  his  biographer,  that  he  was  ever  the  friend  of 
the  common  man,  the  poor  and  the  oppressed,  especially  the 
negro,  was  well-founded. 

GEORGE  S.   BOUTWELL 

Perhaps  the  coldest,  most  calculating  and  yet  unreason 
ing  fanatic  on  the  committee  was  George  S.  Boutwell,  of 
Massachusetts.  The  reason  for  placing  him  fifth  in  import 
ance  is  not  because  of  any  great  ability  which  he  possessed, 
nor  because  he  contributed  anything  worthy  of  note  to  the 
measures  of  reconstruction  proposed  by  the  committee,  but 
because  he  was  constantly  urging  his  colleagues  on  to  more 
radical  actions. 

Boutwell  was  born  in  Brookline,  Mass.,  in  1818.  He 
was  almost  entirely  self-educated,  and  like  men  who 
attain  success  largely  through  their  own  efforts,  his  ten- 

1  See  infra,  ch.  iii. 

3  See  infra,  ch.  vi  and  viii. 

3  See  supra,  p.  29. 


!88  HISTORY  OF  THE  COMMITTEE 

dency  seems  to  have  been  to  over-estimate  his  own  import 
ance.  When  seventeen  years  old,  he  moved  to  Groton, 
Mass.,  and  there  as  clerk  in  the  village  grocery  store,  he 
learned  his  first  lessons  in  practical  politics.1  Ever  a  prac 
tical  politician,  and  always  desirous  above  all  things  of 
being  on  the  winning  side,  he  became  a  Democrat  because 
the  Democratic  party  was  predominant  in  his  village.  In 
1842,  he  was  elected  to  the  lower  house  of  the  Massachu 
setts  legislature  and  between  that  time  and  1851,  he  served 
for  seven  sessions.  During  1851  and  1852  he  was  Gover 
nor  of  Massachusetts.  From  1852  to  1863,  he  held  several 
political  positions  in  the  state  or  Federal  governments.  He 
assisted  in  the  organization  of  the  Republican  party  in 
Massachusetts,  and  in  1862  was  elected  a  member  of  Con 
gress,  where  he  served  until  1869.  In  that  year  he  was  ap 
pointed  Secretary  of  the  Treasury  by  President  Grant  and 
held  that  office  for  four  years.  His  last  public  service  of 
importance  was  rendered  as  a  United  States  senator,  he  hav 
ing  been  elected  in  1873  to  finish  the  four  remaining  years 
of  the  term  of  Henry  Wilson,  who  had  been  elected  Vice- 
President.  From  1877  until  a  few  years  before  his  death  in 
1905  he  remained  in  Washington  as  a  superannuated  poli 
tician,  picking  up  such  crumbs  as  fell  fiom  the  table  of  his 
more  prosperous  Republican  allies. 

Boutwell  was  a  professional  politician,  and  depended 
upon  his  political  offices  for  his  livelihood,  therefore,  as  has 
been  said,  his  chief  interest  was  to  keep  his  party  in  power 
and  himself  in  office.  A  contemporary  says  of  him :  "  Bout- 
well  is  an  ardent,  narrow-minded  partisan,  without  much 
judgment,  not  devoid  of  talents,  with  more  industry  than 
capacity,  ambitious  of  notoriety,  with  a  mind  without  com- 

1  Unless  otherwise  stated,  the  source  of  my  information  concerning 
Boutwell's  life  is  his  autobiography,  Reminiscences  of  Sixty  Years  in 
Public  Affairs. 


PERSONNEL  OF  THE  COMMiTTEE  jgp 

prehension  nor  well  trained;  an  extreme  radical,  destitute 
of  fairness  where  party  is  involved."  Because  he  be 
lieved  the  surest  way  to  continue  the  supremacy  of  the  Re 
publican  party  was  to  commit  it  to  radicalism,  Boutwell 
advocated  the  most  extreme  measures  in  dealing  with  the 
South.  He  desired  a  wholesale  disfranchisement  of  the 
rebels,  and  an  equally  sweeping  enfranchisement  of  the  ne 
groes.  To  Boutwell  is  due  the  credit  of  the  authorship  of 
the  fifteenth  amendment.  He  professed  to  believe  that  un 
less  negro  suffrage  were  granted,  the  United  States  Gov^ 
ernment  would  fall.  His  theory  of  suffrage  and  his  idea  of 
the  necessity  for  negro  suffrage  may  be  seen  in  the  follow 
ing  excerpt  from  one  of  his  speeches  on  the  subject : 

The  right  to  vote  exists  independently  of  all  human  agency 
in  the  sense  of  law ;  and  the  doctrine  that  the  right  of  voting 
is  a  conventional  right,  is  not  sustained  by  reason  or  history. 
...  I  believe  that  negro  suffrage  ought  to  be  made  a  condition 
precedent  to  the  readmission  of  the  southern  states,  and  unless 
it  is  made  so,  a  way  is  open  leading  to  the  destruction  of  this 
government,  from  which  there  is  no  escape.  ...  It  will  fail 
and  fall  from  the  fact  that  by  restoration  without  this  all  es 
sential  guarantee,  we  put  into  the  hands  of  our  enemies  in  the 
South  two  weapons,  the  blows  of  which  we  shall  be  powerless 
to  parry.  These  weapons  are:  (i)  The  re-admitted  rebels,  in 
conjunction  with  their  copperhead  friends,  will  assume  the 
Confederate  debt,  and  force  the  national  government  to  pay 
for  the  slaves.  This  will  cause  government  paper  and  bonds 
to  fall  so  low  that  our  credit  abroad  will  be  ruined.  As  a  re 
sult,  England  and  France,  taking  advantage  of  our  situation, 
will  go  to  war  with  us,  during  which  the  southerners  will  again 
march  out  of  the  Union  and  bid  the  North  defiance.  (2)  If 
you  fail  to  secure  the  black  man  in  his  rights,  he  will  become 
in  a  degree  alien  and  hostile  to  the  national  government.  In 

1  Diary  of  Gideon  Welles,  vol.  iii,  p.  239. 


I9o  HISTORY  OF  THE  COMMITTEE  [IQO 

this  condition  he  will  be  ready  to  accept  the  right  of  suffrage 
from  the  southern  leaders,  and  transfer  his  allegiance  from 
you  to  them.  Then  when  the  next  struggle  comes,  and  the 
southern  leaders  undertake  the  destruction  of  the  government, 
he  will  be  on  their  side,  and  not  on  ours  as  he  was  before.1 

J.   W.   GRIMES 

Grimes  was  born  in  Deering,  New  Hampshire,  in  1816. 
In  1836  he  was  graduated  from  Dartmouth  College,  and  in 
the  same  year  moved  to  Burlington,  Iowa.  Here  he  prac 
tised  law,  served  as  territorial  librarian,  as  delegate  in  the 
territorial  legislature,  and  as  a  member  of  the  state 
assembly  after  the  admission  of  Iowa  into  the  Union. 
In  1854,  he  was  elected  governor  of  the  state  by  a  combina 
tion  of  the  Whigs  and  Freesoilers,  and  during  his  four 
years  of  office  he  did  much  towards  building  up  the  Repub 
lican  party,  and  developing  anti-slavery  sentiment  in  his 
state.  As  a  reward  for  his  services,  and  as  a  recognition  of 
his  ability,  the  Republicans  elected  him  to  the  United  States 
Senate  in  1859,  which  position  he  held  for  ten  years,  retir 
ing  because  of  ill  health.  He  died  in  1871. 2 

Grimes'  chief  service  in  the  Senate  during  the  war  was 
rendered  as  chairman  of  the  committee  on  naval  affairs. 
Theodore  Tilton  said  of  him:  "  Senator  Grimes,  of  Iowa, 
who  speaks  little  and  accomplishes  much,  is  one  of  the  pil 
lars  against  whom  weaker  men  lean  and  are  propped  into< 
strength.  It  is  hard  to  find  anywhere  a  better  worker  in 
public  business  than  Senator  Grimes,  though  he  is  not  a  man 
of  popular  reputation."  3  At  this  time  Grimes  was  acting 

1  Globe,  ist.  sess.,  39th  cong.,  p.  309. 

*  Salter,  Life  of  Grimes;  Appleton's  Cyclopedia  of  American  Biog 
raphy. 

*  Independent,  April  12,  1866.     Tilton  was  editor  of  this  paper.    He 
was  a  talented  fanatic  who  kept  constant  watch  on  political  affairs,  and 
was  intimate  with  some  of  the  Republican  members  of  Congress. 


PERSONNEL  OF  THE  COMMITTEE 

with  the  radicals,  and  in  the  opinion  of  Gideon  Welles,  he 
was  directing  their  course.1  Though  he  was  no  doubt  in 
strumental  in  preventing  some  weak  members  of  the  party 
from  surrendering  to  the  President  during  the  early  stages 
of  the  quarrel  with  the  executive,  Grimes,  like  Fessenden, 
with  whom  he  generally  acted  in  concert,  opposed  the  most 
extreme  measures  of  his  associates,  and  was  one  of  the  seven 
Republican  "  traitors  "  who  voted  for  the  acquittal  of  An 
drew  Johnson.  Grimes  was  not  the  author  of  any  of  the 
reconstruction  measures  proposed  by  the  committee,  but 
there  seems  little  doubt  that  during  the  first  session  oi  the 
39th  Congress,  at  least,  his  influence  was  potent.  Welles  2 
even  thought  that  he  really  controlled  Fessenden,  and  that 
the  leadership  of  the  latter  in  the  Senate  was  only  nominal, 
Grimes  being  the  real  leader.  This,  however,  is  doubtful, 
as  the  unanimity  of  the  two  men  on  public  questions  was 
more  likely  due  to  their  friendship  and  the  similarity  of 
their  ideas. 

GEORGE  H.   WILLIAMS  3 

Williams  of  Oregon,  whom  the  acrimonious  Welles  char 
acterizes  as  "  a  third-rate  lawyer,  weak  and  corrupt,"  *  owes 
his  importance  to  the  fact  of  his  being  the  author  of  the 
first  Reconstruction  act  of  i867.5  He  was  a  native  of 
Columbia  county,  New  York,  having  been  born  in  1823. 
His  first  important  political  position  came  in  1853  when  he 
was  appointed  by  Franklin  Pierce  to  the  chief  justiceship  of 
the  territory  of  Oregon.  In  1865,  after  that  territory  had 

1  Diary,  vol.  iii,  p.  14.     For  the  reason  of  Grimes'  opposition  to  the 
President,  see  infra,  ch.  iv,  p.  229. 

2  Diary,  vol.  ii,  p.  635. 

3  National  Cyclopedia  of  Biography. 
*  Diary,  vol.  iii,  pp.  358,  359. 

5  See  infra,  ch.  viii. 


HISTORY  OF  THE  COMMITTEE 


[IO,2 


become  a  state,  he  was  elected  to  the  United  States  Senate 
as  a  Republican.  He  was  in  all  respects  of  the  same  type 
as  Boutwell,  being  a  mere  time-server  and  office-seeker. 
His  other  contribution  to  legislation  during  his  senatorial 
term  was  the  Tenure  of  Office  act,  and  he  worked  inde- 
fatigably  for  the  conviction  of  Andrew  Johnson.  When  the 
radicals  made  Grant  their  President,  Williams  became  one 
of  his  chief  flatterers  and  hangers-on,  and  was  rewarded 
with  a  place  in  the  Cabinet  as  Attorney-General,  which  he 
held  from  1872  to  1875.  In  1873  Grant  nominated  him  for 
Chief  Justice  of  the  Supreme  Court,  but  even  the  radical 
Senate  retained  sufficient  respect  for  that  high  office,  and 
his  confirmation  was  refused. 

HOWARD,  MORRILL,  WASHBURNE,  BLOW  AND  HARRIS  x 

None  of  the  other  five  Republican  members  of  the  com 
mittee  were  of  any  particular  importance  in  shaping  the 
course  of  reconstruction. 

Jacob  M.  Howard,  senator  from  Michigan,  was  a  worthy 
protege  of  his  colleague  Zachary  Chandler---one  of  the 
most  vulgar  and  reckless  of  the  radicals  —  and  served  con 
sistently  in  the  vanguard  of  the  extreme  negrophiles.  His 
chief  claim  to  fame  rests  upon  the  important  part  played  by 
him  in  organizing  the  Republican  party.  He  drew  up  the 
platform  of  the  first  convention  ever  held  by  the  Republi 
cans,  and  is  said  to  have  given  his  party  its  name.  Howard 
served  in  the  Senate  from  1862  to  1871,  and  never  held 
any  other  very  important  position.  He  was  born  in  1805 
and  died  in  1871. 

Justin  S.  Morrill,  of  Vermont,  born  in  1810,  engaged  in 

1  The  sources  of  my  information  for  the  lives  of  these  men  are 
Appleton's  Cyclopedia  and  the  National  Cyclopedia  of  Biography.  My 
opinions  of  them  are  derived  from  their  speeches  and  votes  in  Con 
gress  and  in  the  committee  ;  also  contemporary  estimates  of  them. 


PERSONNEL  OF  THE  COMMITTEE 

mercantile  and  agricultural  pursuits  until  1854,  when  he 
was  elected  to  Congress.  It  is  quite  possible  that  he  holds 
the  record  for  length  of  continuous  service  in  the  legisla 
tive  department  of  the  United  States  Government.  He  was 
a  member  of  the  lower  house  for  twelve  years,  and  of  the 
upper  for  thirty-one  years,  making  a  continuous  service  in 
Congress  of  forty-three  years.  He  was  an  honest  and 
hard-working  legislator,  but  his  chief  labors  were  directed 
towards  maintaining  a  protective  tariff  and  a  sound  financial 
system.  The  only  part  taken  by  him  in  reconstruction  was 
to  attend  the  meetings  of  the  committee  and  cast  his  vote, 
which  was  regularly  on  the  side  of  radicalism. 

Elihu  -B.  Washburne  was,  like  Morrill,  an  honest  man 
and  though  he  was  long  in  politics  he  does  not  deserve  to 
rank  as  a  statesman  of  conspicuous  ability.  He  was  born 
in  Maine  in  1816,  and  in  1840  he  removed  to  Illinois,  taking* 
up  his  residence  at  Galena.  Here  he  began  the  practice  of 
law,  engaged  actively  in  politics  as  a  Whig  and  in  1852  was 
elected  to  Congress,  where  he  served  continuously  until 
1869.  He  was  appointed  by  President  Grant  Secretary  of 
State  as  a  compliment  for  the  assistance  which  Washburne 
had  rendered  him  personally  toward  gaining  recognition  of, 
and  promotion  for,  his  ability  as  a  commander  during  the 
first  two  years  of  the  war.  Washburne  almost  immediately 
resigned  the  premiership  and  accepted  the  mission  to  France 
in  its  stead.  He  was  in  Paris  during  the  terrible  days  of 
the  Prussian  siege  and  the  still  more  horrible  period  suc 
ceeding,  and  discharged  the  delicate  duties  devolving  upon 
him  in  such  a  manner  as  to  win  the  appreciation  and  ap 
proval  of  President  Grant  and  Secretary  Fish.  After  serv 
ing  the  United  States  in  Paris  for  nearly  nine  years,  he  re 
turned  to  America  and  retired  to  private  life  in  Chicago, 
where  he  died  in  1887. 


HISTORY  OF  THE  COMMITTEE  [IO,4 

Washburne  was  deeply  interested  in  reconstruction  and 
was  classed  among  the  most  extreme  radicals  but  was  not 
prominent  in  originating  or  in  advocating  any  of  the 
measures  proposed  by  the  committee.  Upon  the  death  of 
Thaddeus  Stevens,  he  was  made  chairman  of  the  committee 
on  appropriations,  and  from  the  jealousy  with  which  he 
guarded  the  financial  interests  of  the  government  against  the 
efforts  of  the  "  lobby  "  and  the  "  log-rollers,"  he  was  the 
first  to  win  the  sobriquet,  "  Watchdog  of  the  Treasury." 

Henry  T.  Blow,  of  Missouri,  and  Ira  Harris,  of  New 
York,  were  practcally  nonentities.  They  were  not  by  nature 
radicals,  but  neither  had  force  of  character  sufficient  to  act 
independently  of  party.  The  former  was  a  Virginian  by 
birth,  but  removed  to  Missouri  in  1830,  when  only  thirteen 
years  old.  For  a  few  years  preceding  the  war  he  served 
in  the  state  senate,  and  though  a  southerner  and  a  Demo 
crat,  he  was  opposed  to  secession  and  rendered  valuable 
service  to  the  Union  cause  in  Missouri  by  assisting  in  pre 
venting  that  state  from  joining  the  Confederacy.  For  this 
he  was  rewarded  by  Lincoln  with  the  appointment  to  the 
Venezuela  mission.  After  holding  this  position  for  less 
than  a  year,  he  resigned,  and  in  1862  was  elected  to  Con 
gress,  where  he  served  two  terms.  In  the  committee  he  at 
first  acted  with  the  radicals,  but  in  the  second  session  of 
Congress  he  was  a  follower  of  Bingham,  who,  as  has  been 
seen,  opposed  Stevens  in  his  attempt  to  reduce  the  rebel 
states  to  the  position  of  territories.  In  1869  he  was  ap 
pointed  by  Grant  minister  to  Brazil,  where  he  remained  for 
two  years.  He  died  in  1875. 

Harris  was  born  in  Montgomery  county,  New  York,  in 
1802,  graduated  from  Union  College  in  1824,  and  was  ad 
mitted  to  the  bar  in  1828.  During  the  thirties  and  forties 
he  figured  in  state  politics  as  a  Whig,  and  served  several 


I95]  PERSONNEL  OF  THE  COMMITTEE 

terms  as  a  legislator.  From  1848  to  1861,  he  was  a  judge  of 
the  state  supreme  court,  and  in  the  latter  year  was  elected  to 
succeed  William  H.  Seward  in  the  United  States  Senate. 
He  did  not  distinguish  himself  as  senator,  and  though  he 
acted  with  the  radicals  in  all  matters  pertaining  to  recon 
struction,  the  Republicans  in  the  New  York  legislature  did 
not  re-elect  him  in  1867,  but  instead  chose  Roscoe  Conkling, 
who,  it  was  believed,  would  make  the  influence  of  the  Em 
pire  State  felt,  and  who  could  speak  on  behalf  of  its  interests 
as  Harris  and  his  colleague  Morgan  had  not  done.  After 
his  defeat  for  re-election,  Harris  retired  to  private  life  and 
died  in  1875. 


The  Democratic  minority  in  the  39th  Congress  was  very 
small,  being  hardly  more  than  one-fourth  of  the  member 
ship  in  either  house.  In  mental  calibre  and  political  acumen 
the  Democrats  were  even  more  woefully  weak  than  they 
were  in  numbers.  To  this  general  statement  there  were  a 
few  exceptions,  the  most  notable  being  Reverdy  Johnson. 
He  was  born  in  Annapolis,  Maryland,  in  1796,  received  his 
education  at  St.  John's  College,  and  studied  law  in  the  office 
of  his  father,  who  was  chancellor  of  the  state.  In  1817,  he 
moved  to  Baltimore  and  practiced  lav/  with  great  success. 
Like  most  lawyers  of  his  time,  he  engaged  in  politics  and 
became  well-known  in  the  public  life  of  the  state  and  nation. 
During  the  thirties  he  served  several  years  in  the  Maryland 
senate,  and  was  in  the  United  States  Senate  from  1845  till 
1849,  but  resigned  in  the  latter  year  to  accent  the  position 
of  Attorney-General  in  President  Taylor's  Cabinet.  Until 
1856  he  was  a  Whig  but  in  that  year,  when  his  party  prac 
tically  ceased  to  exist,  he  entered  the  Democratic  party  and 

1  Op.  cit. 


I96  HISTORY  OF  THE  COMMITTEE  [Io,6 

supported  the  candidacy  of  Buchanan.  In  1860,  he  voted 
for  Douglas  and  in  the  following  year  re-entered  the  Sen 
ate.  Like  Crittenden,  of  Kentucky,  and  other  Border  State 
men,  he  did  all  in  his  power  to  avert  hostilities,  but  when 
attempts  at  compromise  proved  unavailing  he  gave  cordial 
support  to  the  administration  in  its  measures  for  prosecut 
ing  the  war.  When  peace  was  restored,  he  urged  the  imme 
diate  restoration  of  the  southern  states  to  their  former  place 
in  the  Union.  Though  acting  generally  with  the  Demo 
crats,  Johnson  was  not  primarily  a  party  man,  and  in  the 
committee  preferred  to  use  his  influence  and  vote  in  mollify 
ing  the  measures  of  his  adversaries,  rather  than  in  hope 
less  opposition  to  everything  proposed  by  them.  For  in 
stance,  when  in  March,  1867,  he  saw  that  the  radicals  were 
becoming  more  and  more  extreme  in  their  demands  for  a 
"  thorough  "  reconstruction,  he  voted  for  the  Reconstruc 
tion  bill,  because  he  feared  their  next  move  would  be  to  re 
duce  the  southern  states  to  the  position  of  territories.  In 
1868,  upon  the  retirement  of  Charles  Francis  Adams  as 
minister  to  the  court  of  St.  James,  Johnson  was  appointed 
in  his  place  and  negotiated  the  Johnson-Clarendon  treaty 
concerning  the  damage  done  to  American  commerce  by  the 
English-built  Confederate  cruisers.  The  treaty  was  not  ac 
ceptable,  however,  to  the  Republican  party,  so  it  was  re 
jected  by  the  Senate  and  Johnson  was  recalled  by  President 
Grant  in  1869.  He  retired  to  private  life  and  died  in  187$. 

Henry  Grider,  of  Kentucky,  and  Andrew  Jackson  Rogers, 
of  New  Jersey,  were  the  two  remaining  Democratic  mem 
bers  of  the  committee,  and  as  such  exercised  no  influence  on 
its  deliberations.  The  former,  born  in  the  same  year  as 
Reverdy  Johnson,  was  of  Whig  antecedents  and  served  in 
the  House  as  a  member  of  that  party  for  two  terms  in  the 
middle  forties.  Re-entering  the  House  as  a  war  Democrat 


PERSONNEL  OF  THE  COMMITTEE 

in  1 86 1,  he  served  through  the  first  session  of  the  39th  Con 
gress,  but  died  before  the  meeting  of  the  second  session. 

Rogers,  born  in  1828,  entered  Congress  for  the  first  time 
in  1863.  He  belonged  to  that  brand  of  Democrats  designated 
contemptuously  as  "copperheads."  He  opposed  every  meas 
ure  of  the  Republicans  that  had  for  its  purpose  the  allevia 
tion  of  the  condition  of  the  colored  race.  He  was  violent 
in  his  hatred  of  that  race,  and  because  of  his  capacity  for1 
speaking  in  denunciatory  terms  of  it,  he  was  one  of  the  few 
minority  members  whom  the  majority  allowed  to  speak  at 
will.  They  correctly  estimated  the  value  of  his  remarks  as 
political  capital  for  themselves,  as  convenient  texts  to  cite, 
showing  what  might  be  expected  to  be  the  fate  of  the 
"  wards  of  the  nation  "  should  a  combination  of  copper 
heads  and  rebels  again  get  control  of  the  government. 


CHAPTER  III 
REPRESENTATION  AND  CIVIL  RIGHTS  x 

THE  particular  phase  of  the  negro  question  which  most 
concerned  Republican  politicians  in  1865-6  was  the  problem 
of  representation  of  the  colored  population  in  Congress.  It 
will  be  remembered  that,  according  to  the  Constitution,  the 
slave  states  had  been  entitled  to  representation  for  three- 
fifths  of  their  slaves.  Under  this  provision  the  fifteen  slave 
states  had,  in  1860,  eighteen  more  representatives  than  they 
would  have  had  if  representation  had  been  based  on  the 
white  population  alone.2  Now  that  the  slaves  were  free,  the 
three-fifths  rule  would  no  longer  operate,  and  should  there 
be  no  amendment  to  the  Constitution  on  the  subject,  all  the 
negroes  would  be  counted  in  apportioning  representation. 
This  would  entitle  the  former  slave  states  to  about  a  dozen 
representatives  in  addition  to  what  they  had  in  1860.  That 
is  to  say,  should  no  change  be  made  in  the  Constitution, 
the  southern  states  3  would  be  entitled  to  about  thirty  repre 
sentatives  for  their  colored  population,  though  not  a  single 

1  For  the  part  of  the  journal  relating  to  this  chapter,  see  supra,  pp. 
41  to  63. 

2  These  and  the  succeeding  figures  are  based  on  a  table  of  statistics 
carefully  prepared  by  Roscoe  Conkling  and  used  by  him  in  a  debate  on 
this  question  on  January  22,  1866.    Globe,  ist  sess.,  39th  cong.,  pp.  356- 
359- 

3  This  included  the  four  states  which  did  not  secede,  but  since  their 
negro  population  was  comparatively  small,  they  would  not  have  been  much 
affected.    According  to  Conkling's  figures,  the  fifteen  former  slave  states 
would  have  been  entitled  to  ninety-four  representatives  based  on  their 

198  [198 


REPRESENTATION  AND  CIVIL  RIGHTS 

negro  could  vote  in  any  of  them.  This  state  of  affairs  the 
Republicans  determined  to  remedy  before  they  would  con 
sent  to  admit  the  representatives  from  the  rebel  states.  It 
is  not  surprising  then  to  find  that  the  first  task  undertaken 
by  the  committee  after  its  organization  was  the  readjust 
ment  of  the  basis  of  representation.  It  was  with  this  sub 
ject  that  the  committee  busied  itself  during  the  first  weeks 
of  January,  1866. 

Propositions  to  amend  the  Constitution  so  that  represen 
tatives  should  be  apportioned  among  the  states  according  to 
their  respective  numbers  of  voters  had  been  submitted  to 
the  House  by  Thaddeus  Stevens  and  others  as  early  as  De 
cember  5,  I865.1  Opposition  to  such  method  of  apportion 
ment  was  raised  by  the  New  England  members ;  and  James 
G.  Elaine,  speaking  for  his  section,2  declared  that  New  Eng 
land  had  fewer  voters  in  proportion  to  her  population  than 
the  states  further  west.  This  was  due  to  two  causes :  first, 
more  of  her  males  than  females  emigrated  to  the  West,  and 
thus  left  her  with  a  disproportionately  large  number  of 
women ;  second,  her  suffrage  was  not  on  so  broad  a  basis  as 
most  of  the  other  states,  as  educational  qualifications  for 
voting  were  generally  required. 

On  the  other  hand,  Elaine's  rival,  Roscoe  Conkling,  defended 
the  proposition  and  declared  a  that  there  were  only  two  sensible 
methods  of  apportioning  representation;  one,  according  to 
the  entire  population,  and  the  other,  according  to  the  voting 
population  of  the  states.  Any  method  not  embodying  one 

total  population,  whereas  they  would  have  been  entitled  to  only  about 
sixty-five  if  based  on  their  white  population  alone.  According  to  the 
apportionment  under  the  census  of  1860  (when  the  three-fifths  rule 
was  still  in  operation)  they  were  entitled  t>  eighty-five. 

1  Globe,  ist  sess.,  39th  cong.,  pp.  9,  10. 

2  January  8,  1866,  ibid.,  pp.  141,  142. 
8  Globe,  ist  sess.,  39th  cong.,  p.  233. 


200  HISTORY  OF  THE  COMMITTEE  [2OO 

or  the  other  of  these  principles,  would  prove  indefensible 
from  the  standpoint  of  political  science,  and  could  not  be 
easily  applied  in  practice.  Moreover,  he  maintained  that 
New  England  would  not  lose  any  representatives  by  an  ap 
portionment  according  to  voters,  and  referred  to  his  table  of 
statistics  in  proof  thereof.  His  argument,  however,  did  not 
convince  the  New  England  men,  and  so  persistent  was  their 
opposition  to  an  apportionment  according  to  voters,  that 
both  Conkling  and  Stevens  abandoned  their  proposition, 
and  after  considering  several  suggestions,  the  committee 
finally,  on  January  2Oth,  fixed  upon  the  following  resolu 
tion  : i 

Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  states  which  may  be  included  within  this  Union, 
according  to  their  respective  numbers,  counting  the  whole  num 
ber  of  persons  in  each  state,  excluding  Indians  not  taxed; 
provided  that  whenever  the  elective  franchise  shall  be  denied 
or  abridged  in  any  state  on  account  of  race  or  color,  all  per 
sons  of  such  race  or  color  shall  be  excluded  from  the  basis  of 
representation. 

This  was  virtually  the  resolution  that  had  been  introduced 
in  the  House  by  Elaine  on  January  8th,  when  he  objected  tot 
an  apportionment  according  to  voters.  Consequently  it 
was  satisfactory  to  the  New  England  members. 

The  resolution  was  reported  to  the  House  by  Thaddeus 
Stevens  on  January  22nd.2  He  consumed  a  few  minutes  in 
(explaining  its  meaning,  and  its  effect  on  the  basis  of  repre 
sentation.  He  considered  it  very  important  that  it  be  sent 
immediately  to  the  state  legislatures  then  in  session,  so  that 
they  would  have  time  to  act  upon  it  before  they  adjourned. 
He  therefore  hoped  that  it  would  pass  the  House  before 

1  See  supra,  p.  53.  2  Globe,  p.  351. 


20I]  REPRESENTATION  AND  CIVIL  RIGHTS  2OI 

sunset,  and  proposed  that  only  two  hours,  divided  equally 
between  the  two  sides  of  the  House,  be  allowed  for  its  de 
bate.  Even  his  own  followers,  however,  were  unwilling  to 
sustain  him  in  such  precipitancy,  and  the  debate  continued: 
for  a  week  on  the  resolution,  after  which  it  was  recommitted 
for  amendment.1  The  only  change  made  by  the  committee 
was  to  strike  out  the  words,  "  and  direct  taxes,"  and  on 
January  3ist,  it  was  reported  back  to  the  House.  On  the 
same  day  it  passed  the  House  by  the  requisite  two-thirds 
majority.2  After  a  long  drawn  out  and  desultory  debate, 
frequently  interrupted iby  other  business,  it  was  brought  to 
a  vote  in  the  Senate  on  March  Qth.  Charles  Stunner  con^ 
sidered  it  a  compromise  of  human  rights  and  he  was  able 
to  carry  enough  radical  senators  with  him  in  opposition  to 
it  to  compass  its  defeat.3 

In  truth  the  measure  deserved  no  better  fate,  for  it  was 
entirely  partisan.  It  was  intended  to  deprive  the  South  of 
as  many  representatives  as  possible  without  decreasing  the 
number  to  which  any  northern  state  was  then  entitled.  It 
will  be  noted  that  it  provided  that  if  any  negro  should  be; 
disfranchised  on  account  of  his  color  the  entire  negro  race 
was  to  be  deducted  from  the  basis  of  representation.  It 
was  thus  even  more  of  a  party  measure  than  the  later  sec 
tion  2  of  the  fourteenth  amendment,  and  much  more  so 
than  the  proposition  which  apportioned  representatives  ac 
cording  to  the  number  of  voters.  In  spite  of  its  partisan 
character,  it  was  ably  defended  as  being  consistent  with  the 
sound  political  philosophy  that  had  been  evolved  concerning 
the  right  of  representation.4  Conkling's  speech,  which  is 
epitomized  in  the  succeeding  paragraphs,  was  the  best  de- 

1  Globe,  p.  493.     See  supra,  p.  58. 

1  Ibid.,  pp.  535  et  seq.  3  Globe,  p.  1289. 

4  Conkling,  Globe,  pp.  356-359- 


202  HISTORY  OF  THE  COMMITTEE  [2Q2 

fense  made  of  the  proposition  from  the  standpoint  of  poli 
tical  theory. 

It  changes,  he  held,  no  principle  laid  down  in  the  Con 
stitution,  as  the  original  provision  (article  i,  section  2) 
clearly  indicates  that  political  representation  does  not  be 
long  to  those  who  have  no  political  existence.  The  gov 
ernment  of  a  free  political  society  belongs  to  its  members, 
and  does  not  belong  to  others.  If  others  are  allowed  to 
share  in  its  control,  they  do  so  by  express  concessions,  not 
by  right.  It  was  this  principle  that  brought  the  so-called 
"  three-fifths  compromise  "  into*  the  national  charter. 

The  slaves  of  the  South  were  not  part  of  that  political  so 
ciety  which  formed  the  Constitution  of  the  United  States. 
Hence  it  followed  that  political  power  was  not  to  be  appor 
tioned  by  treating  them  as  political  persons.  Natural  per 
sons  they  were,  producers  they  were,  and  the  product  of 
their  labor  was  the  proper  subject  of  taxation.  But  direct1 
taxes  and  representation  ought  to  be  distributed  uniformly 
among  the  members  of  a  free  government.  All  alike  should 
bear  the  burdens,  all  alike  should  share  the  benefits. 

Here  was  a  clear  principle,  palpably  right,  easy  and  cer 
tain  in  its  application.  It  applied  itself  universally  and  cov 
ered  the  whole  case  with  one  exception.  The  slave  alone4 
was  the  anomaly  and  the  nondescript — a  man  and  not  a 
man;  in  flesh  and  blood,  alive;  politically  dead;  a  native,  an 
inhabitant,  a  producer,  but  without  recognized  political  at 
tribute  or  prerogative;  the  representative  in  the  system  of 
nothing  but  value. 

What  could  be  done  with  him  ?  The  free  states  could  not 
maintain  that  he  was  a  person  to  be  taxed.  The  slave  states 
cr.nld  not  maintain  that  he  was  a  person  to  be  represented 
without  some  special  provision.  Both  taxation  and  repre 
sentation,  however,  were  desirable  from  the  respective; 
standpoints  of  the  two  sections.  Therefore  they  made  the 


203]  REPRESENTATION  AND  CIVIL  RIGHTS  203 

"  three-fifths  compromise,"  which  was  purely  an  arbitrary 
agreement. 

This  operated  so  long  as  there  was  anything  for  it  to 
operate  on.  Now  a  new  anomaly  exists.  The  four  million! 
people  who  have  suddenly  been  released  from  slavery,  while 
falling  within  the  category  of  "  free  persons,"  are  not  yet 
political  persons.  This  emancipated  multitude  has  no  politi 
cal  status^  Emancipation  vitalizes  only  natural  rights,  not 
political  rights.  Enfranchisement  alone  carries  with  it 
political  rights,  and  these  emancipated  millions  are  no  more 
enfranchised  now  than  when  they  were  slaves.  They  never 
had  political  power.  Their  masters  had  a  fraction  of 
power,  but  since  the  relationship  of  master  and  slave 
is  destroyed,  this  fraction  of  power  cannot  longer  sur 
vive  in  the  masters.  There  is  only  one  place  where  it 
could  logically  go,  and  that  is  to  the  negroes ;  but  since  it  is 
said  they  are  unfit  to  have  it,  it  is  a  power  without  a  rightful, 
owner,  and  should  be  resumed  by  the  whole  nation  at  once. 
If  a  black  man  counts  at  all  now,  he  counts  not  as  three- 
fifths  of  a  man  but  as  five-fifths.  Four  millions,  therefore, 
and  not  three-fifths  of  four  millions,  are  to  be  reckoned  with1 
now,  and  all  these  four  millions  are  presumed  to  be  unfit  for 
political  existence.  Since  the  framers  of  the  Constitution 
did  not  foresee  such  a  contingency,  and  expected  that  eman 
cipation  would  come  gradually  and  be  accompanied  by  edu 
cation  and  enfranchisement,  they  provided  for  no  situation 
whereby  eleven  states  might  claim  twenty-eight  representa 
tives  besides  their  just  proportion. 

Twenty-eight  votes  to  be  cast  here  and  in  the  Electoral  Col 
lege  for  those  held  not  fit  to  sit  as  jurors,  not  fit  to  testify  in 
court,  not  fit  to  be  plaintiff  in  a  suit,  not  fit  to  approach  the 
ballot  box !  Twenty-eight  votes,  to  be  controlled  by  those  who 
once  betrayed  the  government,  and  for  those  so  destitute,  we 
are  assured,  of  intelligent  instinct  as  not  to  be  fit  for  free 
agency ! 


204  HISTORY  OF  THE  COMMITTEE  [204 

Shall  this  be  ?  Shall  four  million  beings  count  four  millions, 
in  managing  the  affairs  of  the  nation,  who  are  pronounced  by 
their  fellow  beings  unfit  to  participate  in  administering  gov 
ernment  in  the  states  where  they  live,  who  are  pronounced  un 
worthy  of  the  least  and  most  paltry  part  in  political  affairs? 
Shall  one  hundred  twenty-seven  thousand  white  people  in 
New  York  count  but  one  vote  in  this  House  while  the  same 
number  of  white  people  in  Mississippi  have  three  votes?  Shall 
the  death  of  slavery  add  two-fifths  to  the  entire  power  which 
slavery  had  when  slavery  was  living?  Shall  one  white  man 
have  as  much  share  in  the  government  as  three  other  white 
men  merely  because  he  lives  where  blacks  outnumber  whites 
two  to  one  ? 1  Shall  this  inequality  exist,  and  exist  only  in 
favor  of  those  who  without  cause  drenched  the  land  with 
blood  and  covered  it  with  mourning  ?  Shall  such  be  the  reward 
of  those  who  did  the  foulest  and  guiltiest  act  which  crimsons 
the  annals  of  recorded  time?  No,  sir;  not  if  I  can  help  it. 

This  proposition  rests  upon  a  principle  already  imbedded  in 
the  Constitution,  and  as  old  as  free  government  itself — a  prin 
ciple  that  representation  does  not  belong  to  those  who  have 
not  political  existence,  but  to  those  that  have.  The  object  of 
the  amendment  is  to  enforce  this  truth.  Every  state  will  be 
left  free  to  extend  or  withhold  the  elective  franchise  on  such 
terms  as  it  pleases,  and  this  without  losing  anything  in  repre 
sentation,  if  the  terms  are  impartial  as  to  all.  If,  however, 
there  is  found  a  race  so  worthless  that  to  belong  to  it  is  alone 
cause  of  exclusion  from  political  action,  the  race  is  not  to  be 
counted  here  in  Congress. 

In  spite  of  Conkling's  able  defense  of  the  amendment, 
even  he  acknowledged  thaTrTWas^primarily  for  party  and 
sectional  advantage,  as  the  concluding  part  of  his  speech 
will  show :  "  Though  the  amendment  is  common  to  all 

1  This  was  the  stock  argument  of  the  Republicans  in  favor  of  the 
amendment.  Cf.  speeches  by  Elaine,  Fessenden  and  Stevens.  Globe, 
pp.  376,  702,  536. 


205]  REPRESENTATION  AND  CIVIL  RIGHTS  205 

states,  and  equal  for  all ;  its  operation  will  of  course  be  prac 
tically  only  in  the  South.  No  northern  state  will  lose  by  it ; 
even  New  York,  in  her  great  population,  has  so  few  blacks 
that  she  could  exclude  them  all  from  enumeration  and  it 
would  make  no  difference  in  her  representation." 

Some  of  those  radicals  who  believed  that  the  Declaration 
of  Independence  was  to  all  intents  and  purposes  a  part  of 
the  Constitution,  thought  Congress  already  had  the  power 
to  enfranchise  the  negroes.  Moreover,  they  maintained  that 
at  the  present  time  the  state  had  no  right  to  disfranchise 
persons  on  account  of  race  or  color,  and  therefore  opposed 
the  amendment  because  it  acknowledged  the  existence  of 
such  a  right.1  Sumner,  for  instance,  argued  that  since  Con 
gress  had  derived  its  authority  for  granting  equal  civil 
rights  from  the  second  section  of  the  thirteenth  amend-^ 
ment,  the  same  provision  empowered  it  to  pass  a  simple 
resolution  declaring  there  should  be  no  inequality  in  political 
privileges.2  He  believed  that  the  section  referred  to,  to 
gether  with  the  "  guarantee  clause  "  of  the  Constitution, 
would  justify  Congress  in  declaring  by  joint  resolution  that 
there  shall  be  "  no  Oligarchy,  Aristocracy,  Caste,  or  Monop 
oly,"  invested  with  peculiar  powers;  but  all  persons  shall 
be  equal  before  the  law,  whether  in  the  court  room  or  at  the* 
ballot  box.  "  And  this  statute,  made  in  pursuance  of  the 
Constitution,  shall  be  the  supreme  law  of  the  land,  anything* 
in  the  constitution  or  laws  of  any  state  to  the  contrary  not 
withstanding."  This  resolution  Sumner  designated  the 
"  Great  Guarantee,"  and  declared  that  without  it,  any  con 
stitutional  amendment  would  be  utterly  worthless. 

To  this  argument  Fessenden  replied  that  the  amendment 
neither  granted  nor  took  away  a  privilege  from  any  state 
in  the  control  of  the  suffrage.3 

1  Kelhy,  Shellabarger  and  Sumner,  Globe,  pp.  377,  405,  673  et  seq. 

2  j.s  >d.  '  Globe,  pp.  702  et  seq. 


2o6  til STORY  OF  THE  COMMITTEE  [2o6 

It  merely  punishes  the  abuse  of  a  privilege  which  the  states 
certainly  possess  and  always  have  possessed  and  exercised.1 
Suffrage  is  not  such  a  natural  right  that  it  must  be  conferred 
upon  every  free  man,  but  is  rather  in  the  nature  of  a  privi 
lege.  A  voter  is  an  officer  as  much  in  substance  as  the  man 
who  enters  the  jury  box  or  as  any  man  who  holds  an  office. 
Voting  is  a  trust  imposed  by  law,  and  although  suffrage  should 
be  extended  as  far  as  the  public  good  will  allow,  no  man  can 
complain  that  he  is  injured  when  a  just  and  reasonable  law 
provides  that  something  more  is  necessary  to  him  than  a  bare 
existence  as  a  free  man  in  a  community  in  order  to  exercise 
it.  Any  disability  imposed,  however,  should  be  one  that  by 
thrift,  education,  and  right-living  can  be  overcome.  Certainly 
color  or  race  is  not  a  just  disability.  The  amendment,  how 
ever,  should  serve  as  an  inducement  to  the  southern  states  to 
build  school  houses  and  churches  and  educate  their  colored 
people  until  they  are  fit  to  vote,  as  these  states  will  desire  the 
full  quota  of  representation  to  which  their  population  would 
ordinarily  entitle  them. 

Before  leaving  the  arguments  of  the  Republicans  on  the 
amendment  and  taking  up  those  of  the  Democrats,  it  should 
be  remarked  that  a  great  number  of  the  former,  while  not 
following  the  vagaries  of  Sumner,  professed  themselves  to 
be  in  favor  of  a  proposition  like  the  later  fifteenth  amend 
ment,  whereby  the  right  to  vote  could  not  be  denied  on  ac 
count  of  race  or  color.'  There  were  two  reasons,  however, 
why  they  could  not  be  induced  to  vote  for  such  an  amend 
ment  at  this  time.  In  the  first  place,  as  they  themselves 
pointed  out,  most  of  the  northern  states  did  not  then  permit- 
negroes  to  vote,  some  having  repeatedly  pronounced  against 
it;  therefore,  it  would  have  been  futile  to  ask  three-fourths 
of  the  states  to  ratify  such  an  amendment  when  only  one- 

1  In  only  six  states  were  negroes  allowed  to  vote  at  that  time. 

*  (See,  for  instance,  speech  of  Henderson,  Globe,  appendix,  pp  105-124. 


207]  REPRESENTATION  AND  CIVIL  RIGHTS 

fourth  of  even  the  loyal  states  had  then  adopted  its  prin 
ciple.  They  did  not  openly  mention  the  second  reason,  but 
it  was  none  the  less  potent  on  that  account.  Such  an  amend 
ment  as  the  fifteenth  would  not  at  that  time  have  been  of 
any  political  value  to  the  Republican  party.  The  only 
method  whereby  the  radicals  might  have  received  any  addi 
tion  to  their  number  through  negro  suffrage  in  the  South,, 
would  have  been  that  employed  by  them  a  year  later  in  the 
Reconstruction  act.  Few  of  them,  however,  dared  go*  so 
far  at  this  time.  Simply  to  have  prescribed  negro  suffrage 
in  such  terms  as  those  of  the  fifteenth  amendment,  and  left 
the  southern  state  governments,  controlled  as  they  then  were 
by  the  native  whites,  to  put  in  operation  the  machinery  for4 
its  enforcement,  would  not  have  resulted  in  the  election  of 
any  more  representatives  by  negroes  then,  than  are  elected 
by  them  to-day. 

The  Democrats  were  quite  as  much  opposed  to  having  the) 
representation  in  the  South  cut  down  as  the  Republicans 
were  to  having  it  increased.  Hence  they  too  were  actuated 
most  by  considerations  of  party,  but  like  their  opponents, 
they  brought  forward  arguments  not  of  a  partisan  char 
acter.  The  principal  grounds  upon  which  they  based  their 
opposition  were : 

First,  there  is  a  difference  between  the  right  to  vote  and 
the  right  to  representation.  This  difference  the  Republicans 
do  not  appear  to  perceive.  It  is  the  interests  of  the  entire 
people  of  a  given  section  that  are  represented  by  their  chosen 
delegates  in  Congress ;  and  the  interests  of  those  people  are 
generally  identical  whether  they  all  have  the  right  to  vote 
or  not.  Thus  the  negroes  in  the  South  draw  their  sus 
tenance  from  the  same  industries  as  do  the  white  people, 
and  it  is  equally  to  their  advantage  that  those  industries  be 
adequately  represented  in  the  national  legislature.  For  in 
stance,  the  colored  agricultural  laborer  or  small  farmer  in 


2o8  HISTORY  OF  THE  COMMITTEE  [2O8 

Georgia  or  Mississippi  would  suffer  just  as  much  from  the 
tax  of  three  cents  a  pound  on  cotton  as  his  white  employer! 
or  landlord.  In  fact,  since  taxes  of  that  sort  are  generally 
shifted  from  the  employer  to  the  employee,  or  the  landlord 
to  the  tenant,  he  probably  would  suffer  even  more  in  pro 
portion  than  his  former  master.  Likewise  high  protective 
duties  on  such  manufactured  articles  as  are  required  in  the 
agricultural  regions  of  the  South  would  bear  quite  as  heavily 
on  the  colored  population  as  on  the  white.1 

Second,  the  proposition  violates  the  doctrine  sacred  to 
Americans,  that  there  shall  be  no  taxation  without  repre 
sentation.  It  inflicts  upon  the  states  for  refusing  to  the 
colored  population  an  unqualified  right  of  suffrage  a  pen 
alty  which  it  does  not  inflict  upon  them  for  refusing  the 
same  thing  to  the  white  population.  While  it  denies  repre 
sentation  to  the  states  for  their  negroes,  they  are  counted 
when  direct  taxes  are  levied ;  and  in  that  indirect  way,  the 
states  are  compelled  to  grant  unqualified  negro  suffrage  in 
order  to  obtain  their  rights  under  the  present  organic  law.2 

Third,  since  the  Republicans  were  doing  so  much  for 
human  rights,  the  Democrats  very  pertinently  asked  why 
they  were  neglecting  the  rights  of  the  women,  who  surely 
were  as  capable  of  voting  as  were  the  negroes.3  It  was 
therefore  moved  that  if  any  person  be  disfranchised  by  a 
state  on  account  of  sex,  that  all  persons  of  that  sex  be  de 
ducted  from  the  basis  of  representation.4  It  is  not  probable 

1  Reverdy  Johnson,  Globe,  pp.  763-770. 

2  Rogers,  Globe,  pp.  353-356.  *  Brooks,  Globe,  pp.  379,  380. 

4  James  Brooks,  of  New  York,  presented  a  petition  signed  by  Mrs. 
E.  Cady  Stanton,  Susan  B.  Anthony  and  others,  in  which  they  said: 
"  We  respectfully  ask  an  amendment  of  the  Constitution  that  shall 
prohibit  the  several  states  from  disfranchising  any  of  their  citizens  on 
the  ground  of  sex — for  justice  and  equality,  your  petitioners  will  ever 
pray."  They  subsequently  asked  that  at  least  no  new  barrier  be  in 
terposed  against  woman's  right  to  the  ballot.  Globe,  p.  380. 


209]  REPRESENTATION  AND  CIVIL  RIGHTS  209 

that  the  Democrats  were  at  heart  any  more  in  favor  of 
woman  suffrage  than  were  the  Republicans,  and  they  made 
this  move  with  the  sole  idea  of  embarrassing  their  oppon 
ents  ;  they  were  doubtless  sincere,  however,  in  declaring  that 
they  preferred  woman  suffrage  to  negro  suffrage. 

Fourth,  if  the  Republicans  are  so  desirous  of  readjust 
ing  representation  on  a  basis  of  perfect  fairness,  why,  asked 
the  Democrats,  do  they  not  change  the  composition  of  the 
Senate?  It  is  true  that  there  was  a  time  when  it  would 
have  been  sufficient  to  reply  to  this  question  with  the 
simple  statement  that  in  the  Senate  the  states  are  repre 
sented  in  their  sovereign  capacity  as  equals;  but  now,  when 
talk  of  state  sovereignty  and  state  equality  is  scoffed  at, 
why  should  the  Senate  be  spared?  New  England,  for  in 
stance,  has  twelve  senators,  and  thereby  exercises  a  prepon 
derating  influence;  whereas,  by  a  just  reapportionment  ac 
cording  to  voting  strength  or  population  she  would  not  be 
entitled  to  nearly  so  many.1 

Fifth,  the  Democrats  had  two  objections  that  were  not 
directed  against  the  merits  of  the  amendment  but  against  the 
methods  employed  in  passing  it.  (i)  It  was  being  passed 
without  consulting  the  very  people  whom  it  most  concerned 
—the  white  people  of  the  South.  (2) The  amendment  should 
not  be  submitted  to  those  partisan  state  legislatures  in  the 
North  which  had  not  been  elected  when  this  question  wasl 
an  issue ;  for  those  legislatures  would  act  solely  with  a  view 
to  party  advantage.  The  only  fair  method  would  be  to 
submit  it  to  state  conventions  whose  members  should  be 
elected  with  reference  to  their  attitude  on  this  question 
alone.  The  people  of  the  northern  states  were  too  fair- 

1  Buckalew,  Globe,  pp.  957  et  seq.  Cf.  also  editorial  in  New  York 
World,  January  23,  1866.  New  England  members  exercised  prepon 
derating  influence  at  that  time  by  holding  the  chairmanships  of  the 
more  important  Senate  committees. 


2io  HISTORY  OF  THE  COMMITTEE  [2io 

minded  to  force  upon  the  South  universal  negro  suffrage, 
as  this  measure  was  calculated  to  do,  when  they  had  not 
adopted  it  for  themselves.1 

The  opinions  of  the  press  varied  from  the  extreme  radical 
position  taken  by  the  Independent2  that  the  amendment 
was  calculated  to  put  the  negroes  back  into  the  hands  of 
the  rebels,  to  that  of  the  Democratic  New  York  World? 
which  declared  that  its  object  was  the  permanent  disfran--' 
chisement  of  the  southern  states.  The  Republican  press  as 
a  whole  did  not  support  the  measure  with  enthusiasm. 
Harper's  Weekly  4  opposed  the  amendment  at  first  on  the 
ground  that  it  would  fail  in  its  purpose  of  forcing  the 
southern  whites  to  grant  suffrage  to  the  negroes.  Later, 
however,  the  same  journal  withdrew  its  opposition,  not 
because  it  viewed  the  amendment  with  any  more  favor,  but 
because  it  had  come  to  understand  that  it  was  only  the  first 
of  a  series  of  measures  which  the  committee  would  pro 
pose  for  securing  the  negroes  in  their  civil  and  political 
rights.  The  New  York  Times,5  voicing  the  sentiment  of 
the  administration  Republicans,  strongly  opposed  the  reso 
lution  and  declared  that  the  first  duty  of  Congress  was  to 
restore  the  Union;  amendments  could  be  considered  later. 
Even  the  New  York  Tribune  6  was  at  first  lukewarm,  for  it, 
like  Harper's  Weekly,  desired  that  Congress  should  make 
negro  suffrage  one  of  the  conditions  precedent  to  the  re- 
admission  of  the  southern  delegations.  The  Tribune,  how 
ever,  being  too  good  a  party  organ  not  to  see  the  value  of 
the  amendment  as  a  party  measure,  soon  came  to  its  de- 

1  Rogers,  Globe,  pp.  353-356. 

*  Ibid.,  February  i,  1866. 
8  Ibid.,  January  23,  1866. 

*  Ibid.,  February  10  and  17,  1866. 

5  Ibid.,  February  17,  1866. 

6  Ibid.,  January  24  and  29,  1866. 


REPRESENT  A  TION  AND  CIVIL  RIGHTS  2 1 1 

fense  and  declared  it  to  be  intrinsically  just  and  proper. 
The  New  York  Herald,1  which  at  that  time  was  friendly  to 
the  administration,  saw  nothing  unfair  in  the  amendment, 
but  opposed  it  on  the  ground  that  it  would  necessitate 
further  delay  in  restoring  the  Union.  Moreover,  it  declared 
that  the  position  taken  by  the  extreme  radicals  as  to  the 
power  of  Congress  over  civil  and  political  rights,  was  cor 
rect;  and  it  asked  the  radicals  why  they  did  not  grant  thei 
negroes  the  right  to  vote  by  a  simple  legislative  enactment. 
Replying  to  its  own  question,  it  said  the  answer  was  clear j 
the  radicals  dared  not  face  the  American  people  on  the 
direct  issue  of  negro  suffrage.  The  New  York  Sun  2  saw 
in  the  amendment  an  attempt  to  force  the  southern  people} 
to  grant  unqualified  negro  suffrage,  and  feared  that  their 
love  for  political  power  would  bring  about  such  a  result. 
This  it  opposed,  and  declared  that  already  there  were  toa 
many  illiterate  voters  in  the  country ;  to  add  a  million  more 
to  their  number,  would  be  an  act  treasonable  to  enlightened 
democratic  government. 

The  consensus  of  opinion  among  the  thinking  non-politi 
cal  element  of  the  Republican  party  was  no  doubt  well  ex 
pressed  by  an  editorial  in  the  Nation*  on  the  question  of 
apportioning  representation.  An  epitome  of  this  editorial 
may  well  conclude  the  discussion  of  the  subject. 

The  amendment  as  reported  has  two  advantages  over  the 
proposition  to  make  legal  voters  the  basis  of  representation, 
(i)  It  does  not  punish,  as  the  other  would  have  done,  the 
older  states  for  sending  large  drafts  of  their  young  men  to  the 
West.  (2)  It  does  not  tempt  the  states  into  competing  for 
voters,  thus  cheapening  the  suffrage.  The  amendment,, 

1  Rogers,  Globe,  January  10  and  24,  1866. 

*  Ibid.,  January  23,  1866. 

*  Ibid.,  February  I,  1866. 


HISTORY  OF  THE  COMMITTEE 


[212 


however,  does  not  secure  any  human  being  in  any  of  the 
revolted  states  in  the  possession  of  his  rights.  It  does  not 
provide  for  freedom  of  speech,  of  the  person,  or  of  instruc 
tion.1  It  does  nothing  for  the  restoration  of  industry.  It  does 
not  furnish  any  southerner  with  a  single  reason  for  laying 
aside  his  old  fear  or  hatred  for  the  Union  or  for  desiring  to  be 
in  feeling,  as  well  as  in  fact  and  in  law,  one  of  its  citizens.  It 
does  not  remove  any  of  the  causes,  whatever  they  may  be, 
which  now  either  hinder  or  retard  the  assimilation  of  society 
in  both  sections  into  one  homogeneous  whole.  The  fact  that  it 
fails  to  do  any  of  these  things  is  not  necessarily  a  good  reason 
for  opposing  it.  It  may  have  good  ends  without  accomplishing 
one  of  these  results.  But  these  are  the  great  ends  of  any  pro 
cess  of  reconstruction.  Any  amendment  now  up,  or  likely  to 
come  up  for  consideration,  that  does  not  materially  help  to 
obtain  these  results  ought  to  have  striking  merits  of  some  kind 
to  entitle  it  to  the  solemn  confirmation  of  a  national  vote. 

The  only  thing  the  amendment  will  accomplish  is  the  reduc 
tion  of  the  southern  delegation  —  and  this  is  a  gain  only  so 
long  as  there  is  a  disposition  in  that  part  of  the  country  to 
embarrass  the  national  credit  by  desiring  the  repudiation  of 
the  debt,  or  so  long  as  they  exhibit  any  disposition  to  make  the 
national  government  pay  for  the  damage  done  them  during  the 
war.  But  it  is  likely  that  they  will  soon  cease  to  show  any  such 
disposition,  after  which  what  position  does  this  amendment 
leave  us  in?  The  South  would  have  a  few  delegates  less  in 
Congress  and  one  great  cause  of  northern  uneasiness  would 
have  been  removed,  but  the  problem  of  social  and  political  in 
equality  in  the  South  would  remain  as  far  from  solution  as 
ever.  A  large  portion  of  the  southern  population  might  still. 
probably  would  still,  be  permanently  excluded  from  citizenship 
on  grounds  which  we  all  hold  to  be  absurd  and  unchristian,  if 
not  utterly  repugnant  to  the  spirit  of  our  institutions.  Caste 

1  One  of  the  chief  complaints  of  northern  people,  traveling  or  dwell 
ing  in  the  South,  was  the  restraint  under  which  they  were  placed  in 
expressing  their  sentiments  in  regard  to  slavery  and  questions  con 
nected  with  it. 


213]  REPRESENTATION  AND  CIVIL  RIGHTS  2I  ; 

at  the  South  might  still  be  created  and  perpetuated.  A  feudal 
system,  based  on  serfdom,  would  still  be  possible  under  the 
Constitution. 

The  Nation 1  then  demanded  that  Congress  frame  an 
amendment  that  would  put  into  the  hands  of  the  national  gov 
ernment  the  safeguarding  of  the  civil  and  political  rights  of 
all  persons  within  its  jurisdiction.  This  journal,  like  its 
radical  contemporaries,  was  confident  that  the  moral  force 
of  such  an  amendment  would  prove  irresistible  and  was 
certain  that  it  would  be  ratified  by  the  states.  That  the  radi 
cals  in  Congress  did  not  share  the  confidence  of  their  party 
organs,  however,  is  made  evident  by  their  action  in  regard 
to  a  resolution  to  amend  the  Constitution  so  as  to  give  Con 
gress  the  power  to  enforce  equal  civil  rights  in  all  the  states' 
of  the  Union. 

At  this  time  laws  discriminating  against  the  negroes  and 
denying  to  them  civil  rights  on  an  equality  with  white  peo 
ple,  were  being  passed  by  the  legislatures  in  the  southern 
states.2  To  the  North  these  laws  seemed  harsh  and  unjust, 
and  on  the  very  day  that  the  39th  Congress  met,  Charles! 
Sumner  introduced  some  resolutions,  providing  among  sev 
eral  other  things  for  equal  civil  rights.3  By  a  reference  to 
the  journal  of  the  committee,  it  will  be  seen  that  on  Janu 
ary  Qth  Fessenden  proposed  that  in  addition  to  an  amend 
ment  modifying  the  basis  of  representation,  another  giving 
the  national  government  the  power  to  secure  all  persons  in 
their  civil  rights  should  be  passed  before  representatives 
from  the  insurgent  states  could  be  permitted  to  resume  their 
seats  in  Congress.4  On  January  nth,  a  bill  giving  Congress 

1  Ibid.,  February  i  and  8,  1866. 

2  Dunning,  Reconstruction,  Political  and  Economic,  pp.  54-59. 

3  Globe,  p.  2. 

4  See  supra,  p.  42. 


214  HISTORY  OF  THE  COMMITTEE  [214 

power  over  the  subject  was  reported  to  the  Senate  from  thd 
judiciary  committee,1  and  though  there  was  not  much  doubt 
that  it  would  become  law,  yet  some  of  the  Republicans, 
either  because  they  doubted  the  constitutionality  of  the  bill 
or  because  they  feared  that  it  might  be  repealed  by  some 
subsequent  Congress,  desired  to  insert  the  guarantee  of  civil 
rights  in  the  Constitution  and  thus  place  the  subject  beyond, 
cavil  or  repeal. 

Therefore,  as  soon  as  the  committee  had  disposed  of  the 
resolution  on  the  basis  of  representation  it  began  to  devote 
its  attention  to  the  formulation  of  a  resolution  amend 
ing  the  Constitution  in  regard  to  civil  rights.2  The  task  was 
not  an  easy  one,  as  there  was  much  diversity  of  sentiment  on 
the  question,  even  among  the  Republican  members,  and  it 
was  not  until  February  3rd  that  the  committee  by  a  vote  o>f 
7  to  6  adopted  the  following  resolution : 3 

The  Congress  shall  have  power  to  make  all  laws  which  shall 
be  necessary  and  proper  to  secure  to  the  citizens  of  each  state 
all  privileges  and  immunities  of  citizens  in  the  several  states 
(Art.  4,  Sec.  2)  ;  and  to  all  persons  in  the  several  states  equal 
protection  in  the  rights  of  life,  liberty  and  property  (5th 
amendment). 

It  was  not  until  the  I3th,  however,  that  Bingham  reported 
the  resolution,  as  adopted  by  the  committee,  to  the  House.4 
That  body  did  not  receive  the  proposition  with  wild 
enthusiasm,  and  even  denied  it  the  privilege  of  being 
considered  as  a  special  order.  Since  to  have  placed  it  on 
the  regular  calendar  would  have  meant  its  indefinite  post- 

1  Flack,  Adoption  of  the  Fourteenth  Amendment,  p.  19. 

2  See  supra,  pp.  46  to  62. 
*Ibid.,  p.  61. 

4  Globe,  p.  813. 


215]  REPRESENTATION  AND  CIVIL  RIGHTS  215 

ponement,  it  was  recommitted,  its  friends  hoping  to  present 
it  on  a  later  and  more  propitious  occasion.  Nearly  two 
weeks  elapsed  before  such  an  occasion  offered  itself,  and 
Bingham  had  the  temerity  to  bring  it  again  to  the  attention 
of  the  House.1  After  a  debate  lasting  three  days,  it  be 
came  evident  that  the  resolution  could  not  secure  the  two- 
thirds  majority  necessary  for  its  passage  as  a  proposed 
amendment  to  the  Constitution.  It  was  therefore  agreed 
with  the  tacit  consent  of  Bingham  to  defer  its  further 
consideration  until  the  second  Tuesday  in  April.2  When 
the  second  Tuesday  in  April  arrived,  nothing  was  said  about 
the  proposed  civil  rights  amendment.  Indeed,  it  was  never 
heard  of  again  as  a  separate  proposition,  but  a  few  weeks 
later,  clothed  in  different  language,  it  appeared  as  section  i 
of  the  fourteenth  amendment. 

This  difference  in  language  is  worthy  of  notice,  as  the 
proposition  under  consideration  differs  from  the  latter  in 
that  in  express  terms  it  conferred  upon  Congress  positive 
power  to  enforce  the  bill  of  rights  in  the  states.3  Bingham 
so  stated  when  he  introduced  the  resolution  into  Congress.4 
He  stood  almost  alone  as  its  champion  and  defender,  and 
made  the  only  important  speech  advocating  its  adoption. 

1  Globe,  p.  1033,  February  26. 

2  Globe,  p.  1095.     In  addition  to  the  Democrats,  a  great  many  Re 
publicans,  including  practically  the  entire  New  York  delegation,  were 
opposed   to   the    amendment.     The   Republicans,    when    postponing   it, 
gave  as  their  reason  a  desire  for  further   conference  concerning  its 
exact  terms.     As  a  matter  of   fact  they  considered  it  poor  political 
ammunition,    and    feared    it    would    have    an    adverse    effect    on    the 
Connecticut  election  which  then  was  held  early  in  April.     Cf.  editorial 
in  New  York  World,   Mar.  3,   1866.     Even  in  the   fall  campaign  the 
Republican  orators  attempted  to  make  but  little  political  capital   out 
of  this  measure.     See  infra,  ch.  vii. 

3  The  language  employed  was  adapted  from  section  2  of  article  iv 
and  from  the  fifth  amendment. 

4  Globe,  p.  1033. 


2i6  HISTORY  OF  THE  COMMITTEE  [2i6 

Before  proceeding  with  the  consideration  of  his  speech, 
however,  some  notice  will  be  taken  of  the  principal  points 
made  against  it. 

The  opponents  of  the  measure  believed  it  to  be  the  em 
bodiment  of  centralization,  and  thought  that  by  it  the  states 
would  be  deprived  of  those  rights  which  were  reserved  to 
them  by  the  organic  law.1  It  was  impolitic  and  out  of  har 
mony  with  the  whole  theory  of  the  Constitution,  which  was 
intended  to  give  Congress  power  over  matters  of  a  general 
nature  only,  and  leave  to  the  individual  states  control  over 
their  own  municipal  concerns.  It  was  especially  uncalled 
for  at  this  time,  when,  after  five  years  of  centralization,  the 
tendency  should  all  be  the  other  way.  During  those  five 
years  the  government  had  destroyed  the  heresy  of  state  sov 
ereignty;  let  not  another  heresy  of  the  opposite  kind,  and 
still  more  dangerous  to  freedom,  rise  in  its  place.2 

Not  every  immunity  and  privilege,  granted  to  citizens  in 
one  state,  should  be  forced  upon  any  other  state.  This 
amendment  if  adopted  would  coerce  all  states  into  giving 
the  franchise  to  negroes  and  would  annul  all  laws  on  mar^ 
riage,  divorce,  and  so  forth,  in  the  several  states.  Under? 
it  all  state  legislation  in  codes  of  criminal  and  civil  juris 
prudence  and  procedure,  affecting  the  individual  citizen, 
might  be  over-ridden,  repealed,  or  abolished,  and  the  law 
of  Congress  established  instead.  In  this  respect  it  was  an 
ultra  departure  from  every  principle  ever  dreamed  of  by 
the  men  who  framed  the  Constitution.3 

Finally  the  Democrats  opposed  it  on  the  grounds  that  its 
language  was  too  vague  and  general ;  that  the  states  most  toj 
be  affected  by  it  and  which  would  be  expected  to  conform 

1  Rogers,  Globe,  appendix,  pp.  133  et  seq. 

2  Davis  of  New  York  (Rep.),  Globe,  pp.  1083  et  seq. 

3  Hale  of  New  York  (Rep.),  Globe,  pp.  1063  et  seq. 


217]  REPRESENTATION  AND  CIVIL  RIGHTS  217 

to  it  as  the  fundamental  law  of  the  country,  had  no  repre 
sentatives  present  to  participate  in  its  consideration;  and 
that  it  would  be  submitted  to  state  legislatures  partisan  in 
their  character  and  not  representative  of  the  true  sentiment 
of  the  people  on  this  question.1 

As  Bingham's  speech  2  in  defense  and  advocacy  of  his 
amendment  comprehends  practically  everything  that  was 
said  in  the  press  or  on  the  floor  of  the  House  in  favor  of 
the  resolution,  an  abridgment  of  his  speech  is  here  inserted 
as  a  summary  of  the  points  made  in  the  debate  on  the  af 
firmative  side  of  the  question. 

The  amendment  is  for  the  simple  purpose  of  arming 
Congress,  by  consent  of  the  people  of  the  entire  nation,  with1 
a  weapon  with  which  it  will  be  able  to  enforce  the  bill  of 
rights  in  every  state.  The  friends  of  the  measure  are  not 
seeking  to  take  away  from  the  various  states  or  their  citi 
zens  any  rights  that  belong  to  them  under  the  Constitution, 
The  Constitution,  however,  does  not  reserve  to  any  state 
the  right  to  withhold  from  a  citizen  of  the  United  States 
within  its  limits,  under  any  pretext  whatsoever,  any  of  the 
privileges  of  a  citizen  of  the  United  States;  or  to  impose 
upon  him,  no  matter  from  what  state  he  may  have  cornel, 
any  burden  contrary  to  that  provision  which  declares  that 
the  citizen  shall  be  entitled  in  the  several  states  to  all  the 
immunities  of  a  citizen  of  the  United  States. 

The  opposition  to  the  amendment  has  not  come  from 
gentlemen  because  they  are  opposed  to  protecting  all  alike! 
in  their  rights  of  life,  liberty,  and  property.  No  doubt 
every  one  desires  that.  What  they  do  object  to  then  is  giv 
ing  to  the  national  government  the  power  of  protecting 
the  rights  of  citizens.  This  they  wish  to  be  left  in  the  hands 
of  the  states.  No  one  will  deny  the  right  and  the  duty  of 

1  Randall,  Globe,  p.  1057.  *  Globe,  pp.  1088-1095. 


2i8  HISTORY  OF  THE  COMMITTEE  [2ig 

the  United  States  to  protect  its  citizens  in  foreign  lands  or 
on  the  high  sea.  Then  why  should  it  not  also  protect  their 
rights  in  the  several  states  ?  Is  this  not  an  anomaly  ?  Gen 
tlemen  remember  the  case  of  Martin  Koszta,1  who,  as  a  de 
clared  citizen  of  the  United  States,  had  his  rights  vindi 
cated  by  prompt  and  summary  action,  when  they  were 
threatened  by  the  government  of  Austria.  But  the  United 
States,  in  the  presence  of  the  laws  of  South  Carolina  or 
Alabama,  is  powerless  to  protect  the  rights  of  its  citizens 
within  the  limits  of  those  states. 

Though  the  bill  of  rights  is  not  now  binding  upon  the 
states,  'there  are  three  provisions  in  the  Constitution  which 
show  that  it  is  the  duty  of  the  states  to  observe  and  enforce 
the  bill  of  rights.  In  the  first  place,  the  Constitution  de 
clares  itself  to  be  the  supreme  law  of  the  land.  From  this 
it  results  that  the  citizens  of  each  state,  being  also  citizens 
of  the  United  States,  ought  to  be  entitled  to  all  the  privileges 
and  immunities  of  citizens  of  the  United  States,  in  every 
other  state;  and  all  persons,  now  that  slavery  has  been  abol 
ished,  should  be  entitled  everywhere  to  equal  protection  in 
their  rights  of  life,  liberty,  and  property.  Second,  the 
Constitution  provides  that  the  members  of  the  several  state! 
legislatures  and  all  executive  and  judicial  officers,  both  of 
the  United  States  and  of  the  several  states,  shall  be  bound! 
by  oath  to  support  it  and  all  the  rights  secured  by  it.  Fin 
ally,  all  state  judges  are  especially  bound  by  the  United 
States  Constitution,  "  anything  in  the  constitution  and  laws 
of  any  state  to  the  contrary  notwithstanding." 

The  Constitution  certainly  imposes  upon  the  states  the 
duty  of  enforcing  the  bill  of  rights;  but  since  they  have 
been  negligent  and  unmindful  of  their  duty,  it  is  now  neces- 

1  For    an    account    of    the    Koszta    affair,    see    Moore,    American 
Diplomacy,  pp.  154-159. 


219]  REPRESENTATION  AND  CIVIL  RIGHTS  219 

sary  that  Congress  be  empowered  to  enforce  by  penal  en 
actment  those  great  canons  of  the  supreme  law. 

Gentlemen  who  oppose  this  amendment,  simply  declare  to 
those  rebel  states,  go  on  with  your  confiscation  statutes,  your 
statutes  of  banishment,  your  statutes  of  unjust  imprisonment, 
your  statutes  of  murder  and  death  against  men  because  of 
their  loyalty  to  the  Constitution  and  Government  of  the  United 
States. 

That  is  the  issue  that  is  before  the  American  people,  and 
God  helping:  me,  without  respect  for  persons  in  hig-h  places 
who  show  a  disposition  to  betray  this  great  cause,  I  will  not 
betray  it  so  long  as  it  is  given  me  to  know  the  right. 

Unless  this  amendment  be  adopted  before  the  eleven  seceded 
states  are  again  admitted  as  integral  parts  of  the  Union,  it 
will  be  impossible  for  the  loyal  minority  in  them  to  maintain 
a  government  there  after  the  military  is  withdrawn.  Then 
where  will  Congress  derive  the  power,  unless  this  or  some 
similar  amendment  be  adopted,  to  prevent  the  re-enactment 
of  all  those  baneful  laws  discriminating  against  the  colored 
people  ?  The  rule  now  is  that  the  citizens  must  rely  upon  the 
state  for  their  protection.  If  the  rebel  states  are  unqualifiedly 
admitted,  some  of  their  officials  will  violate  their  oaths  as  they 
have  done  before,  and  clothed  with  perjury,  avenge  themselves 
upon  the  loyal  men  for  their  fidelity  to  the  sacred  cause  of  the 
Constitution  and  the  laws. 

Sir,  we  are  no  longer  permitted  to  doubt  that  whole  com 
munities  are  capable  of  so  great  perfidy.  We  are  told  they 
will  be  in  terror  of  the  prowess  of  your  arms,  and  doubtless 
they  will  avoid  an  armed  conflict  again.  But  the  point  1  de 
sire  to  make  clear  is,  that  unless  you  p*it  them  in  terror  of  the 
power  of  your  laws,  made  efficient  by  the  solemn  act  of  the 
whole  people  to  punish  the  violators  of  oaths,  they  may  defy 
your  restricted  legislative  power  when  reconstructed;  they  may 
dismember  your  Union  and  drive  into  banishment  every  loyal 
man  in  all  the  rebel  states,  and  hold  as  their  heritage  a  terri 
tory  one-half  as  large  as  continental  Europe,  without  firing  a 
gun  or  daring  again  to  commit  the  overt  act  of  treason. 


220  HISTORY  OF  THE  COMMITTEE  [22O 

I  speak  in  behalf  of  this  amendment  in  no  party  spirit,  in 
no  spirit  of  resentment  toward  any  state  or  the  people  of  any 
state,  in  no  spirit  of  innovation,  but  for  the  sake  of  a  violated 
Constitution  and  a  wronged  and  wounded  country.  I  urge 
the  amendment  for  the  enforcement  of  those  essential  provis 
ions  of  your  Constitution,  which  declare  that  all  men  are  equal 
in  the  rights  of  life  and  liberty  before  the  majesty  of  the 
American  law;  and  that  no  man,  no  matter  what  his  color,  no 
matter  how  poor,  friendless  or  ignorant,  shall  be  deprived  of 
those  rights  without  due  process  of  law. 

In  spite  of  Bingham's  plea,  Congress,  as  has  been  seen, 
was  not  moved  to  adopt  his  civil  rights  resolution  at  this 
time.  Before  proceeding  to  the  consideration  of  how  it 
and  the  other  provisions  of  the  fourteenth  amendment  were 
adopted  later,  it  is  necessary  to  discuss  two  other  matters 
with  which  the  committee  concerned  itself.  One  of  these 
was  a  resolution — occasioned  partly  by  Johnson's  veto  of 
the  Freedmen's  Bureau  bill  and  partly  by  the  insistent  de 
mand  for  the  admission  of  the  Tennessee  delegation — 
wherein  Congress  declared  its  power  over  everything  con 
nected  with  reconstruction.  The  other  was  the  evidence, 
taken  by  the  committee,  relative  to  conditions  in  the  South. 
These  two  questions  will  form  the  subject  of  the  two  suc 
ceeding  chapters. 


CHAPTER  IV 

UNITING  THE  REPUBLICAN  CONGRESSMEN  AGAINST  THE 
PRESIDENT  1 

TENNESSEE  was  the  only  rebel  state  that,  even  according 
to  the  severe  tests  applied  by  Congress,  needed  no  recon 
struction  by  that  body.  Apparently  if  it  had  not  been  for 
fear  of  setting  a  precedent  that  later  might  have  proved 
troublesome  in  the  cases  of  the  other  ten  states,  her  repre-« 
sentatives  and  senators  would  have  been  admitted  soon  after 
the  assembling  of  Congress.  In  order  to  understand  how! 
Tennessee  came  to  be  in  a  class  different  from  the  othe'r 
rebel  states,  it  is  necessary  to  review  briefly  the  political 
history  of  that  state  from  the  passage  of  the  act  of  seces 
sion,  May  6,  1861,  to  the  meeting  of  the  39th  Congress  ifa 
December  of  1865. 

Statistics  show  that  about  40,000  men,  living  principally 
in  eastern  Tennessee,  voted  against  secession.2  Unlike  the 
"  original  "  Union  men  in  the  other  states,  who,  when  once 
their  state  had  seceded,  threw  in  their  lot  with  the  Confed 
eracy,  the  Union  men  of  east  Tennessee  not  only  voted 
against  secession  but  supported  the  Union  cause  throughout 

1  For  part  of  the  journal  relating  to  this  chapter,  see  supra,  pp.  63 
to  81. 

2  House  Reports,  3Qth  cong.,  ist  sess.,  no.  30,  part  i,  p.  91.    This  vol 
ume,  divided  into  four  parts,  contains  all  the  testimony  taken  by  the 
four    sub-committees    of    the   joint    committee.      (See   supra,    p.    47). 
Hereafter  it  will  be  referred  to  as  Testimony,  part  i — Tennessee;  part 
ii — Va.,  N.  C,  and  S.  C. ;  part  iii — Ark.,  Ga.,  Miss.,  and  Ala.;  part 
iv — Fla.,  La.,  and  Tex. 

221]  221 


222  '  HISTORY  OF  THE  COMMITTEE  [222 

the  struggle.  During  the  first  two  years  of  the  war,  thesd 
men  suffered  many  persecutions  at  the  hands  of  the  rebels. 
Had  the  Confederate  government  let  them  alone,  it  is  proW 
able  that  they  would  have  remained  neutral,  for  the  east 
Tennesseean  had  no  more  love  for  the  "  Yankees  "  than  he 
had  for  the  large  planters  of  the  South.  Such  action  on,  thd 
part  of  that  government,  however,  was  impossible,  as  east 
Tennessee  was  one  of  the  principal  seats  of  war.  When  thej 
Confederate  congress  passed  its  first  Conscription  act  and 
attempted  to  enforce  it  in  that  section,  thousands  of  Union! 
men  there  left  their  homes  and  fled  either  into  the  mountains 
or  into  Kentucky,  where  they  joined  the  Union  forces  and 
gradually  fought  their  way  back  home  again.1 

On  the  3rd  of  March,  1862,  President  Lincoln  appointed 
as  military  governor  of  Tennessee,  Andrew  Johnson,  who, 
during  the  three  years  he  held  that  office,  gained  for  himself 
a  national  reputation  for  courage  and  fidelity  to  the  Union 
cause.2  On  September  19,  1863,  Lincoln,  in  accordance  with 
his  cherished  plan  of  establishing  loyal  civil  governments) 
in  the  rebel  states  whenever  the  expulsion  of  the  Confed-i 
erate  forces  seemed  likely,  authorized  Johnson  to  exercise 
whatever  powers  might  be  necessary  to  enable  the  loyal 
people  to  organize  such  a  republican  form  of  government} 
in  Tennessee  as  would  entitle  her  to  the  guarantee  of  the 
United  States  therefor.3  Though  Johnson  was  in  thorough 
sympathy  with  Lincoln's  plan,  continued  military  contests! 
and  the  disorder  attendant  thereon,  rendered  it  impossible) 
for  him  to  make  definite  preparations  for  holding  a  conven 
tion  until  late  in  the  fall  of  1864.  The  convention  was 
called  to  meet  in  Nashville  on  December  I9th,  but  the  re- 

1  House  Reports,  op.  cit.,  p.  115. 
'  Ibid.,  pp.  i,  5. 
•Ibid.,  p.  5. 


223]  CONGRESS  v.  PRESIDENT  223 

entrance  of  Hood's  army  into  Tennessee  after  its  disastrous} 
campaign  around  Atlanta,  caused  the  postponement  of  the) 
convention.  After  Hood's  army  had  been  practically  de 
stroyed  in  the  battles  of  Franklin  and  Nashville,  and  the 
power  of  the  Confederacy  had  been  forever  broken  in  Tenn 
essee,  the  convention  was  again  called.1 

It  assembled  on  January  9,  1865,  and  proceeded  to  undo 
everything  that  had  been  done  by  the  rebel  legislature,  and  to 
create  a  new  state  government  in  harmony  with  the  Govern 
ment  of  the  United  States,  In  order  to  accomplish  these} 
purposes,  it  proposed  for  ratificatioin  by  the  people  an 
amendment  to  the  state  constitution  for  the  abolition  of 
slavery.2  It  further  proposed  what  was  called  a  "  schedule  " 
to  the  constitution,  declaring  that  the  adoption  of  the  ordin 
ance  of  secession  and  the  convention  between  Tennessee 
and  the  Confederate  government  was  an  "  act  of  trea 
son  and  usurpation,  unconstitutional,  null  and  void;"  that 
all  laws  passed  by  the  rebel  legislature  were  likewise  null 
and  void ;  that  all  debts  incurred  in  aid  of  the  rebellion  werej 
never  to  be  paid ;  that  the  acts  of  Andrew  Johnson  as  mili 
tary  governor,  together  with  his  appointments  to  office,  were 
valid  and  binding.3  The  amendment  and  "  schedule  "  were 
duly  ratified  by  the  people  on  February  22d,  about  20,000 
votes  being  cast  for  them  and  only  a  few  hundred  against.4 
Only  those  persons  who  swore  loyalty  to  the  United  States 
and  enmity  to  the  Confederacy,  were  allowed  to  vote.  An 
election  for  state  officers  was  held  on  March  4th,  at  which! 
the  celebrated  "  Parson  "  Brownlow  was  chosen  governor, 

1  House  Reports,  op.  cit.,  p.  6. 

*  The  thirteenth  amendment  at  this  time  had  not  been  submitted  to 
the  states,  as  it  did  not  pass  Congress  until  January  3ist.  Rhodes, 
vol.  v,  p.  50. 

3  Testimony,  part  i,  pp.  6,  7,  99. 

4  Ibid.,  pp.  8,  9,  92. 


224  HISTORY  OF  THE  COMMITTEE  [224 

and  men  noted  for  their  "  unconditional  Unionism  "  were 
selected  as  members  of  the  legislature.1 

The  new  government  was  inaugurated  on  April  3,  1865. 
Among  the  acts  passed  by  the  legislature,  demonstrating  its 
loyalty,  was  one  fixing  the  qualifications  of  voters.  In  gen 
eral,  it  provided  that  all  former  civil  and  military  officers! 
under  the  Confederate  government  or  the  rebel  govern 
ment  of  Tennessee,  should  be  disfranchised  for  fifteen 
years,  and  that  all  other  rebel  soldiers  and  sympathizers 
should  be  disfranchised  for  five  years.  It  also  ratified  the 
thirteenth  amendment,  and  provided  that  the  freedmen 
should  have  the  same  rights  as  other  people  in  civil,  but  not) 
political,  affairs.2  The  legislature  also  elected  two  United 
States  senators,  and  at  a  general  election  held  in  August, 
eight  members  of  Congress  were  chosen.  Though  at  least 
two  of  these  ten  men  for  a  short  time  at  the  beginning  of 
the  war  had  held  commissions  as  judicial  officers  under  the 
Confederate  government,  there  were  no  objections  to  the 
delegation  as  a  whole  on  grounds  of  personal  disloyalty  to 
the  United  States  Government.3 

When  Congress  met,  the  Tennesseeans  were  insistent  that 
they  be  admitted  to  their  seats.  One  of  their  number, 
Horace  Maynard,  who  was  well-known  for  his  Union  senti 
ments,  had  been  selected  by  Johnson  as  an  instrument  with' 
which  to  thwart  Stevens  in  his  purpose  of  excluding  all  the* 
southern  members.  As  has  been  seen,  however,  Stevens 
outgeneraled  his  adversary,  and  though  Maynard  made  re 
peated  efforts  to  obtain  the  floor,  it  was  "  imperatively  and 

1  Testimony,  part  i,  p.  98. 

2  Ibid.,  pp.  30-32,  73,  99. 

*  Globe,  p.  33.  As  a  mark  of  special  favor  to  the  Tennessee  mem 
bers,  the  House  allowed  them  the  right  to  occupy  seats  in  the  hall,  a 
privilege  persistently  denied  the  members-elect  from  the  other  seceded 
states. 


225]  CONGRESS  v.  PRESIDENT  225 

peremptorily  "  refused  him.1  There  was  a  strong  feeling, 
however,  among  Republicans  both  in  and  out  of  Congress, 
that  though  the  general  rule  of  temporarily  excluding  the* 
southern  representatives  was  just,  the  Tennessee  members 
ought  to  be  excepted  from  its  operation.  One  of  the  most 
difficult  tasks  that  fell  to  the  lot  of  Thaddeus  Stevens  wasj 
the  fight  he  was  forced  to  carry  on  against  this  sentiment 
within  his  own  party  and  among  his  own  followers. 

The  sub-committee  2  on  Tennessee  began  taking  testimony 
and  examining  witnesses  on  January  25th,  and  concluded 
its  labors  on  February  I3th.  It  took  the  depositions  of  most 
of  the  members  of  the  Tennessee  delegation,  all  of  whom) 
declared  that  their  admission  into*  Congress  would 
strengthen  the  position  of  the  loyalists,  whereas  their  con 
tinued  exclusion  would  diminish  if  not  destroy  their  influ 
ence.3  Only  eight  other  witnesses  were  called,  five  of  whom 
were  army  officers*  stationed  in  Tennessee,  and  the  other 
three,  loyal  citizens.  Upon  being  asked  whether  in  their 
opinion  the  complete  restoration  of  Tennessee  to  her  place 
in  the  Union  would  tend  to  strengthen  the  loyal  govern 
ment  in  the  state  or  no,  each  of  the  eight  answered,  "  yes," 
thereby  confirming  the  opinion  of  the  members-elect.  Thd 
tenor  of  this  testimony  together  with  other  pressure  that  was 
being  brought  to  bear  upon  the  committee 5  made  it  impera- 

1  Letter  of   Maynard  to  the  Washington   Chronicle,  copied  in  New 
York  Evening  Post,  December  6,  1865 ;  Globe,  pp.  3  et  seq. 

2  See    supra,    pp.    47,    48;    this    sub-committee    was    composed    of 
Bingham,  Grimes  and  Grider.    The  last  was  a  Democrat,  and  Bingham 
and  Grimes  were  not  extreme  radicals. 

3  Testimony,  pt.  i,  pp.  110-128. 

4  Including  Gens.  G.  H.  Thomas  and  C.  B.  Fisk. 

5  See  New  York  Tribune,  February  19,  1866,  for  a  letter  written  a 
few  days  before  from  Washington,  in  which  the  correspondent  said 
there  was  a  strong  undercurrent  in  Congress  among  Republicans  in 


226  HISTORY  OF  THE  COMMITTEE  [226 

tive  that  some  immediate  action  be  taken  in  regard  to  ad 
mitting  the  Tennessee  delegation. 

Consequently,  when  the  committee  had  disposed  of  the 
resolutions  for  amending  the  Constitution  in  regard  to  the 
basis  of  representation  and  civil  rights,  it  began  to  devote 
its  attention  to  the  admission  of  Tennessee.  In  order  to 
understand  the  close  relation  between  this  matter  and  the 
development  of  the  breach  between  Johnson  and  Congress, 
it  is  necessary  to  make  constant  reference  to  the  journal. 
On  February  I5th,  the  sub-committee  on  Tennessee,  con 
sisting  of  Bingham  and  Grimes,  both  conservatives,  and 
Grider,  a  Democrat,  reported  a  resolution  stating  simply 
that  Tennessee  had  adopted  a  constitution  republican  in 
form  and  therefore  was  entitled  to  representation  in  Con 
gress.1  This  resolution  was  discussed  at  this  meeting  and 
the  next,  February  i/th,  and  though  it  was  amended,  its 
principle  was  not  departed  from.  However,  eight  members 
of  the  committee  apparently  did  not  desire  so  simple  a  reso 
lution,  and  just  before  the  adjournment  of  this  meeting 
voted  that  a  new  sub-committee  be  appointed  to  whom  "  the 
whole  subject  of  Tennessee  "  should  be  referred.2  This 

favor  of  the  unconditional  admission  of  Tennessee.  This,  the  Tribune 
opposed,  saying:  "Such  action  would  mean  the  abandonment  of  the 
guarantee  policy  of  the  Republican  majority  in  Congress;  and  that 
principle  once  abandoned,  the  majority  will  hopelessly  flounder  about 
in  the  mazes  of  arbitrary  theories  and  special  pleadings.  Then,  with 
out  a  fixed  policy  to  guide  them,  they  will  unconsciously  yield  point 
after  point,  until  Tennessee,  with  all  her  good  and  laudable  qualities, 
will  prove  the  Trojan  horse  carrying  all  rebeldom  concealed  in  her 
belly."  This  statement  well  expresses  the  reason  why  the  extreme 
radicals  strenuously  objected  to  admitting  the  representatives  from 
Tennessee. 

1  See  supra,  p.  63. 

2  See  supra,  p.  67. 


227]  CONGRESS  v.  PRESIDENT  227 

new  sub-committee  was  composed  of  Williams,  Conkling, 
and  Boutwell,  all  radicals. 

As  has  been  said,  up  to  the  appointment  of  this  new  sul> 
committee  on  Tennessee,  the  basis  of  the  committee's  dis 
cussion  was  a  simple  resolution,  reciting  the  fact  that  Tenn 
essee  had  adopted  a  constitution,  republican  in  form,  and 
was  therefore  to  be  admitted  unconditionally  to  an  equal 
position  with  the  other  states.  That  the  three  Democrats, 
and  the  four  most  conservative  Republicans,  Grimes,  Harris, 
Bingham,  and  Blow,  were  in  favor  of  such  unconditional 
admission  may  fairly  be  inferred  from  the  fact  that  they 
voted  against  the  motion  to  raise  a  new  committee  on  Tenn 
essee.  Had  Fessenden,  who  was  the  most  conservative  of 
the  eight  Republicans  who  voted  for  the  motion,  changed 
his  vote  to>  the  negative,  no  new  committee  would  have  been 
appointed,  and  it  is  not  too  much  to  suppose  that  a  resolu 
tion  for  the  admission  of  Tennessee  without  condition 
would  have  been  carried  at  this  or  the  next  meeting  of  the 
committee.  Had  such  action  been  taken  by  the  committee 
and  favorably  considered  by  Congress,  to  that  extent  it 
would  have  been  a  virtual  approval  of  the  President's  policy. 
It  is  fair  to  assume  that  those  members  of  the  committee 
who  favored  such  action  were  desirous  of  working  in  har 
mony  with  the  President  and  coming  to  some  sort  of  un 
derstanding  with  him. 

But  harmony  between  the  President  and  the  conserva 
tives  was  exactly  what  Stevens  and  his  fellow-radicals  were! 
seeking  to  prevent.  In  order  to-understand  what  their  pur 
pose  was  in  having  the  question  of  Tennessee's  admission 
referred  to  this  new  radical  sub-committee,  it  is  necessary, 
though  at  the  risk  of  some  repetition,  to  review  the  relations! 
between  the  President  and  Congress  for  the  preceding  two> 
and  a  half  months.  /  Johnson  suspected  when  the  committee! 
was  appointed,  thafthe  whole  proceedings  both  in  the  Re- 


"    *  W    * 

, 


228  HISTORY  OF  THE  COMMITTEE  [22g 

publican  caucus  and  in  the  House  were  revolutionary  and  a 
preconcerted  design  aimed  at  him  and  his  policy  of  recon-< 
struction.M  He  had  hoped  that  the  demand  of  Horace  May- 
nard  and  nis  colleagues  for  recognition  as  duly  qualified 
representatives  from  Tennessee,  would  frustrate  the  scheme 
of  the  radicals;  but,  as  already  said,  Maynard  was  put 
aside.2  When  this  move  on  the  part  of  the  President  failed, 
he  expected  that  the  Senate  would  refuse  to  concur  in  the 
House  resolution  creating  the  joint  committee  on  recon 
struction;  and  his  friends,  the  administration  Republicans, 
certainly  did  their  utmost  to  accomplish  this  result,  but 
with  slight  success.  Though  some  of  the  sting  was  taken 
out  of  the  resolution,3  its  main  purpose  was  accomplished; 
whereupon  the  President  became  thoroughly  convinced  that 
a  deep  and  extensive  intrigue,  with  Stevens  and  Sumner  as 
the  chief  plotters,  was  going  on  against  him.4 

Andrew  Johnson  has  been  severely  denounced  5  for  not 
taking  steps  toward  compromising  with  Congress,  and 
viewed  in  the  light  of  present  knowledge,  he  certainly  made 
a  great  mistake  in  not  doing  so.  When  it  is  remembered, 
however,  that  Congress  from  the  beginning  acted  under  the? 
leadership  of  two  men  who  were  violently  opposed  to  his 
policy  and  who  publicly  arraigned  him  in  bitter  terms,  it  is 
hardly  to  be  expected  that  he,  a  man  naturally  combative, 

1  Diary  of  Gideon  Welles,  vol.  ii,  pp.  387,  388. 

2  See  supra,  pp.  142,  224.     Cf.  also  Welles,  vol.  ii,  p.  388.    Welles 
thought  the  putting  aside  of  Maynard  was  by  common  consent  of  that 
gentleman  and  the  radical  leaders.     Maynard  did,  in  fact,  along  with 
several  of  his  colleagues,  ally  himself  with  the  radicals  when  a  definite 
break  was  made  between  them  and  Johnson.    This  would  tend  to  prove 
the  correctness  of  Welles'  suspicion. 

3  See  supra,  ch.  i,  pp.  145  et  seq. 

4  Welles,  vol.  ii,  p.  398. 

5  Rhodes,  vol.  v,  pp.  570  et  seq. 


229]  CONGRESS  v.  PRESIDENT  229 

and  under  unfriendly  criticism,  obstinate,  would  make  over 
tures  of  peace  to  such  a  body.  Moreover,  the  leaders  of 
the  conservative  Republicans,  Grimes  and  Fessenden,  with 
whom  he  should  have  compromised,  were  unwilling  to  sup 
port  him  unless  they  could  at  the  same  time  largely  modify 
or  even  control  his  policy.1  iln  spite  of  many  assertions  to 
the  contrary,  Andrew  Johnsdfi  was  not  a  weak  man,  and  did 
not  allow  himself  to  be  controlled  by  anybody j  Hence 
Grimes  and  Fessenden  found  themselves  drifting  toward 
the  radicals;  and  while  they  wished  very  much  to  avoid  a 
rupture,2  when  it  came,  these  two  able  and  honorable  men, 
as  well  as  most  other  conservatives,  naturally  supported  the 
radicals  for  a  time,  at  any  rate,  in  what  they  considered  the 
lesser  of  two  evils. 

But  so  long  as  there  was  no  open  rupture  between  Con 
gress  and  the  President,  there  was  always  a  possibility  that 
the  President  might  come  to  an  understanding  with  the  con 
servative  Republicans  in  both  houses,  especially  with  those 
in  the  Senate.  Such  an  understanding  Stevens  knew  wouldj 
defeat  all  his  cherished  plans  for  a  thorough  reconstruction 
of  the  southern  states.  It  was  therefore  his  policy  to  make, 
as  soon  as  possible,  an  irreparable  breach  between  the  legis-< 
lative  and  executive  departments.  It  is  almost  certain  that 
he  correctly  understood  the  character  of  Johnson,  and  be 
lieved  that  under  stress  of  opposition  and  bitter  denuncia*- 
tion,  the  latter  sooner  or  later  would  retort  in  kind  and 
thereby  give  his  opponent  exactly  the  opportunity  he  desired 
of  bringing  about  the  long-sought  rupture.  Therefore,  dur 
ing  January  and  February,  Stevens  and  his  satellites  em 
braced  every  opportunity  that  presented  itself  for  raising 

1  Welles,  vol.  ii,  p.  449. 

2  See  supra,  ch.  ii,  pp.  173  et  seq.    Cf.  also  Welles,  vol.  ii,  p.  434,  and 
New  York  Herald,  February  20,  1866,  Washington  correspondence. 


it* 


230  HISTORY  OF  THE  COMMITTEE  [230 

the  ire  of  Johnson  to  the  bursting  point.  They  calculated 
that  any  violent  speech  of  his  against  themselves  could  be 
so  distorted  as  to  make  it  appear  that  Johnson  had  gone 
over  to  the  rebels.  Then  by  insidiously  appealing  to  pre 
judice  they  realized  that  they  could  overwhelm  him  before 
the  bar  of  public  opinion.  A  few  incidents  will  illustrate 
the  methods  they  employed  in  baiting  their  adversary. 

On  January  8th,  Williams,  of  Pennsylvania,  whom  Gid 
eon  Welles  described  as  "  a  revolutionary  and  whiskey- 
drinking  radical,"  1  introduced  a  resolution  stating  that  it 
was  the  sense  of  the  House  that  the  military  should  not  be 
withdrawn  from  the  South,  until  Congress  "  shall  have  as 
certained  and  declared  their  further  presence  there  unnec 
essary."  2  The  resolution  was  passed  as  a  party  measure, 
though  a  large  number  of  members  abstained  from  voting 
when  their  names  were  called.  Such  a  usurpation  of  execu 
tive  prerogative  by  a  branch  of  the  legislative  department* 
was,  as  Welles  points  out,  "  purposely  offensive ;"  and  he 
foresaw  that  sooner  or  later  the  President  would  have  "  a' 
square  and  probably  a  fierce  fight  with  these  men." 

On  January  29th,  there  appeared  in  the  papers  an  au 
thorized  utterance  of  the  President,  entitled,  "  Conversation 
between  the  President  and  a  distinguished  senator."  4  In 
this  interview,  Johnson  expressed  himself  rather  freely  in 
regard  to  some  measures  then  pending  in  Congress.  Thisi 
was  the  first  time  he  had  done  so,  and  though  he  was1 
guarded  and  moderate  in  his  language,  he  left  no  room  to 
doubt  that  he  would  veto  a  bill  which  the  House  had  just 
passed,  granting  unqualified  suffrage  to  the  negroes  in  the 

1  Welles,  vol.  ii,  p.  412.  s  Globe,  p.  13?- 

8  Welles,  vol.  ii,  p.  413. 

4  New  York  Herald,  January  29,  1866.  The  "  distinguished  senator  " 
was  Dixon  of  Connecticut,  one  of  the  administration  Republicans. 
Welles,  vol.  ii,  p.  449. 


231]  CONGRESS  v.  PRESIDENT  231 

District  of  Columbia.  It  should  be  remarked  in  passing 
that  Sumner  and  the  other  radicals  in  the  Senate,  with  all| 
their  keenness  for  universal  suffrage,  seem  to  have  been 
aware  that  on  the  direct  issue  of  enfranchising  the  great 
mass  of  ignorant  negroes  who,  during  the  war,  had  drifted 
into  Washington,  they  would  hardly  be  sustained  by  the 
country.  At  any  rate  the  bill  was  not  pressed  to  a  vote  in 
the  upper  house.  It  was  certainly  most  unfortunate  for 
Johnson  that  it  was  not  passed,  for  on  this  issue  it  is  likely 
that  he  would  have  been  sustained  by  the  country,  while 
certain  defeat  awaited  him  on  such  issues  as  the  fourteenth^ 
amendment  and  the  Civil  Rights  and  Freedmen's  Bureau 
bills. 

At  the  time  the  interview  was  given  out  the  House  of 
Representatives  was  debating  the  proposed  amendment  on 
the  basis  of  representation.1  The  President  expressed  him 
self  as  opposing  the  further  amendment  of  the  Constitu^ 
tion,  but  thought  that  if  there  was  to  be  a  change  in  the 
method  of  apportioning  representatives,  it  should  be  accord 
ing  to  the  number  of  qualified  voters  in  each  state.  The' 
radicals  professed  to  take  great  umbrage  at  this  utterance 
by  the  executive,  as  an  intrusion  upon  the  prerogative  of 
the  legislative  branch  of  the  government. 

Stevens,  alive  as  always  to  the  occasion,  seized  this  as 
an  excellent  opportunity  for  saying  something  that  would 
serve  the  double  purpose  of  drawing  from  Johnson  a  further 
expression  of  his  hostility  to  Congress,  and  at  the  same  time\ 
creating  an  esprit  de  corps  among  his  colleagues  against  ex-, 
ecutive  encroachment.  On  January  3ist,  he  rose  in  his 
place,  ostensibly  to  debate  the  resolution  for  amending  thei 
Constitution,  but  in  reality  to  read  into  the  record  and 
make  comments  on  the  much-discussed  "  conversation  be- 

1  See  supra,  ch.  iii. 


232 


HISTORY  OF  THE  COMMITTEE 


tween  the  president  and  a  distinguished  senator."  *  He 
declared  this  utterance  clearly  was  meant  as  a  proclamation 
or  command  from  the  President,  made  and  put  forth  in  ad 
vance  and  at  the  time  when  Congress  was  legislating  on  the! 
questions;  made  in  violation  of  the  privileges  of  the  House; 
made  in  such  a  way  that  centuries  ago,  had  it  been  made  to 
Parliament  by  a  British  King,  it  would  have  cost  him  his 
head.  "  But  sir,"  said  he  in  concluding,  "  we  pass  that  by; 
we  are  tolerant  of  usurpation  in  this  tolerant  government 
of  ours."  He  then  resumed  his  seat,  patiently  to  await  the 
echo  of  his  words  which  he  expected  from  the  direction  of 
the  White  House. 

But  no  echo  came  immediately.  Meanwhile  the  senti 
ment  in  favor  of  admitting  the  Tennessee  delegation  was 
growing  apace,  and  even  Stevens,  with  all  his  tenacity  and 
influence,  could  hardly  have  withstood  it  much  longer. 
There  is  no  doubt  that  Johnson  would  have  been  very  much! 
pleased  had  the  Tennessee  representatives  been  admitted 
unconditionally,  for  he  was  most  interested  in  his  own  state 
where  he  had  been  the  principal  instrument  in  putting 
the  presidential  policy  of  reconstruction  into  operation. 
Whether  such  unconditional  admission  of  Tennessee  would 
have  been  regarded  by  Johnson  as  a  peace  offering,  and 
caused  him  to  make  concessions  to  the  conservatives  or  no, 
it  is  difficult  to  tell  with  any  degree  of  certainty.2  At  any 
rate,  Stevens  seems  to  have  feared  that  it  might  lead  to 
mutual  concessions  and  an  understanding  between  them. 
He  therefore  determined  that  if  Tennessee  must  be  admitted 

1  Globe,  pp.  536  et  seq. 

2  The  correspondents  for  nearly  all  the  New  York  dailies  and  week 
lies  believed  the   President  would   make   concessions   to   Congress  if 
that  body  would  admit  Tennessee.    New  York  World,  January  3,  1866  ; 
The  Independent,  January  4,    1866.     Cf.   also   Welles,   vol.  ii,   p.  434- 
Welles,  however,  did  not  think  the  President  would  concede  anything, 
even  though  Tennessee  were  admitted. 


233]  CONGRESS  v.  PRESIDENT  233 

it  should  be  with  such  conditions  as  would  put  the  President 
in  an  embarrassing  situation.  If  he  should  sign  the  resolu-> 
tion  admitting  Tennessee  with  conditions  additional  to  those 
which  he  had  required,  he  would  thereby  commit  himself 
to  the  fundamental  principle  of  the  radicals  that  his  condi 
tions  were  not  sufficient;  if,  on  the  other  hand,  he  should 
veto  it,  then  the  argument  that  the  radicals  were  alone  in 
their  policy  of  excluding  the  rebel  states,  would  lose  its 
force.1  Thus  it  is  seen  that  the  question  whether  Tennessee 
should  be  re-instated  by  a  simple  act  declaring  her  entitled 
to  representation,  or  by  a  resolution  with  several  conditions; 
attached,  was  significant. 

On  February  iQth  Conkling,  from  the  select  committee 
on  Tennessee,  reported  a  resolution  providing  that  senators' 
and  representatives  from  that  state  should  be  entitled  to  ad 
mission  upon  certain  conditions  being  complied  with.2  The 
conditions  were  that  Tennessee  should  not  pay  her  rebel 
debts,  that  she  should  forever  maintain  in  her  constitution 
the  provision  disavowing  the  doctrine  of  secession,  that  all 
rebels  should  be  disfranchised  for  at  least  five  years,  and 
finally  that  the  qualified  voters  of  the  state  at  a  special  elec 
tion  should  accept  the  foregoing  conditions. 

No  action  was  taken  on  Conkling's  resolution,  however, 
and  the  committee  adjourned  without  deciding  whether 
Tennessee  should  be  admitted  with  or  without  conditions;; 
It  is  probable  that  the  settlement  of  the  question  was  pur 
posely  deferred  to  await  the  announcement  of  the  Presi 
dent's  action  on  the  Freedmen's  Bureau  bill,  which  it  was 
expected  would  be  made  during  the  day.3  His  veto  of  that 

1  See  Welles,  vol.  ii,  p.  442,  for  this  view  of  Stevens'  intentions;  also 
New  York  World,  February  19,  1866. 

2  See  supra,  p.  68. 

8  This  was  a  bill  to  continue  indefinitely  and  enlarge  the  operation  of 
the  Freedmen's  Bureau  which  had  been  established  a  year  before.  For 
its  exact  terms,  see  Flack,  pp.  12-14. 


234  HISTORY  OF  THE  COMMITTEE  [234 

bill  alienated  the  conservatives  and  caused  them  to  change 
their  attitude  in  regard  to  preventing  the  radicals  attaching, 
conditions  to  the  admission  of  Tennessee.  In  fact,  it  caused 
a  loss  of  interest  in  the  whole  Tennessee  question,  as  it  gave 
Stevens  an  opportunity  to  commit  Congress  against  the 
policy  of  the  President  without  bringing  in  Tennessee  at  all. 
In  his  veto  message,  Johnson  not  only  expressed  disap 
probation  of  the  Freedmen's  Bureau  bill's  provisions,  but 
went  so  far  as  to  question  the  right  of  Congress  to  legislate 
on  questions  affecting  so  vitally  the  southern  states  while! 
they  were  still  unrepresented.1  This  attitude  on  the  part 
of  the  executive  so  highly  incensed  every  Republican  con 
gressman  who  was  jealous  of  the  prerogative  of  the  legis 
lative  branch  of  the  government,  that  when  the  committee 
met  the  next  morning,  February  2Oth,  even  the  conserva 
tives  were  ready  to  adopt  a  resolution  proposed  by  Stevens! 
in  the  following  words :  ~ 

Be  it  resolved  by  the  House  of  Representatives,  the  Senate 
concurring,  that  in  order  to  close  agitation  upon  a  question 
which  seems  likely  to  disturb  the  action  of  the  government,  as 
well  as  to  quiet  the  uncertainty  which  is  agitating  the  minds 
of  the  people  of  the  eleven  states  which  have  been  declared 
to  be  in  insurrection,  no  senator  or  representative  shall  be  ad 
mitted  into  either  branch  of  Congress  from  any  of  said  states 
until  Congress  shall  have  declared  such  state  entitled  to  such 
representation. 

This  resolution  was  adopted,  all  the  Republicans  voting1 
in  the  affirmative,  and  it  was  ordered  to  be  reported  to  the 
House  immediately.3 

Before  following  the  progress  of  the  above  resolution 

1  For  the  text  of  message,  see  Globe,  p.  915. 

2  See  supra,  p.  71. 
8  Ibid.,  p.  72. 


J  '  is* 

X    a     Aol" 

>;  i 


CONGRESS  v.  PRESIDENT  235 

through  Congress  it  is  necessary  to  make  a  brief  statement 
of  the  reasons  that  led  Johnson  to  veto  the  Freedmen's 
Bureau  bill,  and  to  note  the  reception  by  the  country  of  that 
veto.  This  was  the  first  of  a  series  of  events — one  leading! 
to  the  other — that  made  the  breach  between  him  and  Con 
gress  irreparable. 

In  the  first  place,  Johnson  certainly  opposed  the  bill  on 
principle,  but  as  the  New  York  Sun  *  pointed  out  at  the 
time : 

The  difference  between  Congress  and  the  President  as  to  the 
contents  of  the  bill  is  not  sufficient  to  justify  a  veto.  It  is 
justifiable,  however,  on  the  ground  that  the  President  has  a 
policy  of  his  own  for  the  restoration  of  the  southern  states, 
and  Congress  has  an  antagonistic  policy  of  its  own  for  the 
same  purpose.  It  has  been  evident  for  some  time  that  these 
conflicting  methods  must  sooner  or  later  come  into  collision, 
and  the  Freedmen's  Bureau  bill  is  simply  the  medium  that  has 
brought  the  opposing  elements  into  contact.  The  President 
saw  clearly  that  the  bill  was  only  the  advance  guard  of  a  long 
procession  of  others  that  are  even  more  obnoxious  to  him.  He 
saw  that  his  policy  was  being  ignored  by  Congress  and  that 
that  body  was  determined  to  force  its  own  program  upon  the 
South.  He  knew  it  was  impossible  to  avoid  the  issue  eventu 
ally  and  he  determined  to  meet  it  firmly  at  the  outset. 

Moreover,  Johnson  believed  that  the  bill  was  championed 
principally  by  the  radicals,  who,  in  their  commitee  of  fif 
teen,  had  intrigued  against  him  and  assumed  to  dictate  the 
policy  of  the  administration.2  J  Jfo  doubt,  he  thought  a  large 
number  of  Republicans  who  /were  not  classed  as  radicals 
would,  now  that  the  issue  was  clearly  defined,  come  to  his 
support.  ;  Johnson's  great  mistake  was  in  thinking  the' 

1  Globe,  February  21,  1866. 
3  Welles,  vol.  ii,  p.  435. 


236  HISTORY  OF  THE  COMMITTEE  [236 

Freedmen's  Bureau  bill  a  measure  for  which  the  radicals! 
alone  were  responsible.1  As  a  matter  of  fact,  there  were 
very  few  Republicans  who  did  not  desire  such  modification: 
of  the  President's  policy  as  would  give  protection  and  as 
sistance  to  the  newly-emancipated  negroes.  The  Freed 
men's  Bureau  bill  was  designed  to  render  such  protection 
and  assistance,  and  since  most  conservative  Republicans 
were  committed  to  its  principles,  they  could  not  now  aban 
don  them  honorably  and  sustain  the  veto.  The  mere  veto, 
had  it  been  placed  simply  on  the  grounds  of  the  inex 
pediency  and  unconstitutionality  of  the  Freedmen's  Bureau 
bill,  would  hardly  have  constrained  the  conservatives  to  go 
over  to  the  radical  position  and  support  Stevens'  declaratory 
resolution.  They  were  forced  into  that  position  by  that  part 
of  the  President's  veto  message  2  in  which  he  expressed  the 
opinion  that  it  was  highly  improper  for  Congress  to  legis 
late  upon  a  subject  concerning  almost  solely  those  very  states 
which  were  then  unrepresented  in  that  body.3 

The  response  from  the  country  showed  the  President  had 
chosen  badly  in  making  the  Freedmen's  Bureau  bill  the 
issue  on  which  he  proposed  to  fight  it  out  with  the  radicals!. 
The  great  majority  of  the  Republican  papers  were  not  sup 
porters  of  the  radicals,  but  desired  to  have  the  President 
and  the  conservatives  come  to  a  common  understanding. 
They  were  unanimous,  however,  in  their  support  of  the 
principles  involved  in  the  Freedmen's  Bureau  bill.4  The 

1  Welles,  vol.  ii,  p.  435. 
'*  Globe,  p.  915. 

'Fessenden  stated  that  he  had  no  particular  interest  in  the  Freed 
men's  Bureau  bill,  and  would  have  felt  inclined  to  sustain  the  veto  had 
Johnson  not  taken  this  attitude  in  regard  to  the  rights  of  Congress. 
Globe,  p.  987. 

4  For  a  confirmation  of  this  statement,  see  New  York  Tribune,  Mar. 
3rd,  in  which  editorials  on  the  subject  of  the  veto  are  reprinted  from 


237]  CONGRESS  v.  PRESIDENT  237 

New  York  Tribune  had  all  along  expressed  the  hope  that 
the  President  and  Congress  would  act  in  harmony,  and 
while  it  favored  negro  suffrage,  it  was  distinctly  unfriendly 
to  the  extreme  measures  advocated  by  Stevens  and  Sumner., 
It  deeply  lamented  the  President's  veto  and  said  regarding1 
his  action : 

Mr.  Johnson  has  made  a  grave  mistake.  He  has  relieved 
those  who  elected  him  of  a  great  responsibility  by  taking  it  on 
his  own  shoulders.  Hereafter,  whatever  wrongs  may  be  in 
flicted  upon  or  indignities  suffered  by  the  southern  blacks,  will 
be  charged  to  the  President,  who  has  left  them  naked  to  their 
enemies.  Time  will  show  that  he  has  thereby  precluded  a  true 
and  speedy  restoration  of  the  South,  and  inflicted  more  lasting 
misery  on  her  Whites  than  on  her  Blacks.1 

The  Chicago  Republican  believed  the  veto  meant  an  irre 
parable  break  between  Congress  and  the  President,  and 
said: 

The  point  at  which  the  President  deserts  the  Republicans  is 
well  defined.  No  other  point  could  be  worse  for  him,  none 
could  be  better  for  those  he  abandons.  The  Republicans  pro 
pose  to  fulfil  the  pledge  of  the  nation  by  protecting  the  freed 
people  against  the  unjust,  discriminating,  barbarous  laws  of 
the  states  lately  in  rebellion.  That  is  the  whole  sense  and 
purport  of  the  vetoed  bill.  The  President  refuses  his  consent 
to  a  measure  so  just  and  necessary.  He  will  give  the  luckless 
freedmen,  no  matter  though  they  may  have  borne  arms  and 
suffered  wounds  for  the  nation,  no  other  protection  than  that 
of  the  ferocious  clutches  from  which  they  have  but  just  been 
snatched.  They  shall  have  no  safeguard,  no  law,  no  admin 
istration  of  justice,  except  such  as  the  rebel  states  will  afford 

twenty-two  Republican  newspapers  representing  all  parts  of  the  coun 
try.  All  of  them  expressed  regret  that  there  was  to  be  a  conflict  be 
tween  the  President  and  Congress. 

New  York  Tribune,  February  20,  1866. 


238  HISTORY  OF  THE  COMMITTEE  [238 

them !  That  is  the  whole  sense  and  purport  of  his  veto.  It  is 
not  a  question  of  political  rights.  Negro  voting  has  nothing 
to  do  with  it.  And  on  this  monstrous  proposition  to  deny  to 
the  freedmen  all  national  protection  against  local  legislation 
of  an  oppressive,  discriminating,  caste  character,  the  Presi 
dent  flouts  and  spits  upon  the  earnest  convictions  of  the  loyal 
masses  and  makes  an  ostentatious  appeal  to  the  country.1 

The  Boston  Advertiser,  speaking  more  solemnly,  said : 

The  grave  character  of  the  issue  thus  suddenly  joined  be 
tween  the  legislative  and  executive  branches  of  our  govern 
ment  is  one  which  it  was  worth  much  serious  effort  to  avoid, 
not  for  the  interests  of  party  which  are  temporary  and  incon 
siderable,  but  for  the  sake  of  the  national  interests  which  are 
momentous  and  eternal.  But  if  it  indeed  has  come,  we  do  not 
see  how  Congress  can  decline  to  meet  it  openly  and  firmly ;  re 
lying  upon  the  certain  support  of  the  great  majority  of  the 
American  people  in  a  steadfast  adherence  to  the  course 
marked  out  alike  by  self-respect  and  by  the  demands  of  public 
safety.2 

Harper's  Weekly  was  one  of  the  last  of  the  Republican 
papers  to  give  up  hope  that  the  President  and  Congress 
might  be  reconciled.  It  was  not  until  after  the  veto  of  the 
Civil  Rights  bill  that  it  was  fully  assured  the  President 
would  yield  nothing  of  his  policy  for  the  sake  of  acting  har 
moniously  with  the  conservative  Republicans.  On  April 
1 4th,  it  announced  that  there  was  no  longer  room  to<  doubt 
that  the  breach  was  beyond  repair,  and  announced  its  de 
parture  from  him  in  these  words: 

President  Johnson  must  see  that  the  Union  party  cannot  ac 
cept  the  indiscriminate  support  of  all  his  views  and  measures 

1  Quoted  in  New  York  Tribune,  March  3,  1866. 

2  Ibid.    Quoted  in  New  York  Tribune,  March  3,  1866. 


c, 


239]  CONGRESS  v.  PRESIDENT  239 

as  the  test  of  constitutional  fidelity ;  and  he  makes  a  profound 
mistake  if  he  regards  the  situation  as  a  struggle  between  him 
self  and  Mr.  Thaddeus  Stevens.  When  he  sees  those  who 
have  as  little  respect  for  Mr.  Stevens'  wisdom  as  he  has  him 
self,  gravely  questioning  his  course,  it  is  a  fatal  delusion  if  he 
sees  only  Mr.  Stevens. 

As  has  been  said,  the  declaratory  resolution  was  passed 
by  the  committee  to  rebuke  Johnson  for  intimating  in  his 
veto  message  that  the  extent  of  the  power  of  Congress  over! 
reconstruction  was  the  right  of  each  house  to  determine  thei 
election,  returns,  and  qualifications  of  its  own  members; 
and  for  questioning  the  propriety  of  Congress  legislating  oni 
matters  pertaining  to  the  southern  states  while  they  were 
unrepresented.  Stevens,  relying  on  the  resentment  occa 
sioned  by  the  veto  message,  believed  he  and  his  friends  could 
push  the  resolution  through  both  houses.  If  this  could  be 
accomplished,  the  breach  between  the  President  and  Con 
gress  would  be  so  widened  as  to  make  reconciliation  almosti 
impossible.  The  methods  adopted  by  the  radicals  in  rail 
roading  the  resolution  through  the  House  on  February 
2Oth,  and  the  incidents  attendant  thereon,  marked  that  as 
the  second  important  event  in  the  progress  of  the  rupture. 
A  perusal  of  that  day's  proceedings,  as  faithfully  recorded 
in  the  Globe^  will  convince  any  one  that  thereafter  there- 
was  not  even  the  shadow  of  a  chance  that  the  President  and 
the  Republican  representatives  could  ever  be  brought  to  act 
in  harmony. 

In  presenting  the  declaratory  resolution  to  the  House, 
Stevens  said : 

Until  yesterday  [Feb.  19]  there  was  an  earnest  investigation 
into  the  condition  of  Tennessee  to  see  whether  by  act  of  Con 
gress,  the  state  could  be  admitted  to  representation;  but  sjnce 

1  Globe,  pp.  943-950;  cf.  also  accounts  in  newspapers  of  February  21. 


240  HISTORY  OF  THE  COMMITTEE  [240 

yesterday  there  has  arisen  a  state  of  things  which  the  com 
mittee  deems  puts  it  out  of  its  power  to  proceed  further  with 
out  surrendering  a  great  principle  and  the  rights  of  this  body 
to  the  usurpation  of  another  power.1 

The  previous  question  was  then  called.  The  radicals 
either  were  or  feigned  to  be  in  an  angry  state  of  mind. 
Should  a  Democrat  protest  against  the  proceedings,  he  was! 
silenced  with  shouts  of  "Order!  Order!"  from  all  parts 
of  the  hall.  Mr.  Rogers  hoped  the  resolution  would  not  be) 
driven  through  under  gag  law.  (Order!)  Mr.  Eldridge 
(Dem.)  submitted  the  point  of  order  that  the  committee 
had  no  right  to  report  its  proceedings  by  piecemeal ;  and  that 
the  House  ought  not  to  receive  any  other  than  a  final  report 
from  it.  The  point  of  order  was  overruled  by  the  speaker. 

Mr.  Grider — I  rise  to  a  privileged  question.  I  appeal  to  the 
courtesy  of  the  gentleman  from  Pennsylvania  to  allow  me  to 
make  one  or  two  statements. 

The  Speaker — This  is  not  a  privileged  question. 

Mr.  Grider — I  make  an  appeal  to  the  gentleman  from  Penn 
sylvania. 

Mr.  Stevens — There  are  earthquakes  around  me,  and  I 
tremble ;  I  dare  not  yield. 

Mr.  Grider — I  ask  to  be  heard  on  this  proposition  and  that 
it  be  postponed  and  printed.  (Shouts  of  "  Order!  Order!  ") 

The  Speaker — The  gentleman  from  Kentucky  is  not  in 
order. 

Mr.  Rogers — I  ask  the  gentleman  from  Pennsylvania  to 
yield  to  me  for  a  question.  (Cries  of  "  Order!") 

Mr.  Stevens — Not  until  after  the  vote  is  taken. 

Mr.  Rogers — Will  he  not  allow  me  to  be  heard  ? 

(Loud  shouts  of  "  Order!")  This  is  gag  law.  (Renewed 
shouts  of  "Order!") 

Mr.  Randall   (Dem.) — I  rise  to  a  question  of  order;  that 

1  Cf.  supra,  p.  71. 


241]  CONGRESS  v.  PRESIDENT  24I 

this  House  has  no  constitutional  power  to  dismember  the 
Union,  and  no  authority  in  law  to  destroy  the  rights  of  the 
states. 

The  speaker  ruled  against  the  point  of  order.  The  Demo 
crats  then  spent  an  hour  or  two  in  making  motions  to  ad 
journ,  demanding  the  yeas  and  nays,  tellers,  and  applying  all 
other  methods  of  delay  known  to  parliamentary  procedure. 
Mr.  Eldridge,  their  floor  leader,  proposed  to  Mr.  Stevens 
that  if  he  would  withdraw  his  demand  for  the  previous 
question  and  allow  debate,  the  Democrats  would  consent  to 
go  on  with  the  business. 

Mr.  Stevens — It  is  simply  the  return  of  the  rebels  of  1861. 
I  sat  thirty-eight  hours  under  this  kind  of  a  fight  once,  and  I 
have  no  objection  to  a  little  of  it  now.  I  am  ready  to  sit  for 
forty  hours. 

Mr.  Eldridge — I  appeal  to  the  gentleman  from  Pennsylvania 
to— (Cries  of  "Order!"). 

In  vain  did  the  Democrats  plead  for  just  one  hour  in 
which  to  debate  the  question. 

Mr.  Voorhees  (Dem.) — Will  the  opposite  side  of  this  House 
allow  me  to  make  a  proposition ?  (Cries  of  "  No !  No !") 

Mr.  Washburne  hoped  his  side  would  hear  Mr.  Voorhees 
for  a  moment.  Other  radicals  objected. 

Mr.  Eldridge — Will  they  allow  nobody  to  make  a  proposi 
tion  to  them?  (Cries  of  "  No!  No!"). 

After  six  hours,  the  Democrats  saw  the  uselessness  of 
continuing  their  dilatory  tactics  and  gave  up  the  unequal 
contest.  The  vote  was  then  taken  and  the  resolution  passed 
109  to  40,  only  eight  Republicans  voting  with  the  Demo 
crats.  About  30  Republicans,  however,  had  absented  them- 


^  ur 

e*  & 

'  <f 


242  HISTORY  OF  THE  COMMITTEE  [242 

selves,  thinking  thus  to  escape  the  responsibility  of  voting; 
but  Thaddeus  Stevens  was  too  shrewd  a  party  manager  to 
allow  so  considerable  a  number  of  his  colleagues  to  shirk. 
Therefore,  on  the  next  day  he  moved  to  reconsider  the  vote1 
by  which  the  resolution  was  passed,  in  order  to  allow  these 
wavering  gentlemen  to  place  themselves  on  record.  Most 
of  them,  under  the  influence  of  the  party  lash,  were  forced 
to  vote  in  the  affirmative.1  The  victory  lay  with  the  great 
radical;  three-fourths  of  the  members  of  the  House  of 
Representatives  were  irrevocably  committed  to  his  leader 
ship  against  the  policy  of  Andrew  Johnson. 

On  February  2ist,  Fessenden,  in  the  Senate,  moved  2  the 
postponement  of  the  regular  order  of  business  in  order  to 
take  up  the  resolution  for  consideration.  Objection  was 
made,  so,  under  the  rules,  it  went  over  until  the  next  legis 
lative  day,  which,  since  the  twenty-second  was  a  holiday, 
was  the  twenty-third.  In  the  meantime  occurred  the  third, 
and  what  by  most  writers  has  been  considered  the  most  im-* 
portant  event  in  the  progress  of  the  breach  between  John 
son  and  the  Republicans  in  Congress.  I  This  was  a  speech 
delivered  by  the  President  on  Washington's  birthday."  In 
this  speech,  Johnson  made  a  defense  of  his  policy.  Since 
that  policy  was  being  assailed,  it  was  perfectly  natural  and 
proper  that  he  should  defend  it.  However,  he  made  two 
mistakes.  /In  the  first  place,  he  denounced  the  reconstruc 
tion  committee  as  an  irresponsible  central  directory  that  had 
assumed  all  the  powers  of  Congress  and  was  using  them  to 
keep  the  southern  states  out  of  the  Union.  This  was  an 
error  in  fact,4  for,  as  has  been  seen,  the  committee  previous 


\ 


1  Globe,  p.  966. 

J  Ibid.,  pp.  954-957- 

3  McPherson,  Reconstruction,  p.  58. 

4  For   a   fair   and  just   defense   of   the   committee,   see   Fessenden's 
speech  cited  infra,  pp.  244  et  seq. 


(  & 


243]  CONGRESS  v.  PRESIDENT  243 

to  the  veto  of  the  Freedmen's  Bureau  bill  was  not  con 
trolled  by  the  radical  faction  in  it.  )  His  second  mistake  wasj 
one  of  policy.  He  arraigned  by  naliie  Charles  Sumner  and 
Thaddeus  Stevens  as  traitors,  and  classed  them  with  Jef 
ferson  Davis  and  Robert  Toombs  as  destroyers  of  the  fun 
damental  principles  of  the  government.  From  his  stand 
point  of  zealous  defender  of  the  Constitution  and  the  rightsi 
of  the  states,  this  was  certainly  not  a  mis  statement,  of  fact; 
but  at  that  time,  when  it  was  not  customary  for  the  Presi 
dent  to  denounce  members  of  a  co-ordinate  branch  of  the 
government,  it  was  considered  in  bad  taste.  JThough  j^olin  • 
son  lost  practically  nothing  with  conservative  senators  by 
this  personal  assault  on  two  men  whom  they  themselves 
heartily  disliked,  he  certainly  must  have  lost  popular  sup 
port  by  it.  Republicans  of  the  rank  and  fik  were  accus 
tomed  to  hearing  only  rebels  and  copperheads  speak  dis 
paragingly  of  such  men  as  Stevens  and  Sunnier,  and  it  was 
easy  to  convince  them  that  whoever  did  so  belonged  in  one 
or  the  other  of  those  categories.  However,  Johnson  did 
injure  himself  among  conservative  senators  by  his  deroga 
tory  remarks  concerning  the  reconstruction  committeel 
This  is  evident  from  the  tenor  of  their  speeches  in  the  de 
bate,  which  commenced  on  the  succeeding  day  on  the  de 
claratory  resolution.  As  its  passage  by  the  Senate  consti 
tutes  the  fourth  event  in  the  series,  a  brief  account  of  the 
most  significant  points  brought  out  in  the  debate  is  now  in 
order. 

After  the  morning  hour  on  February  23d,  Fessenden 
moved  to  lay  aside  the  regular  order  of  business  and  take, 
up  the  consideration  of  the  resolution.1  Sherman  (Rep.)! 
objected.  "  The  Senate."  said  he,  "  like  the  House  three 
days  ago,  is  now  in  a  state  of  great  excitement,  and  to  de- 

1  Globe,  pp.  981-983. 


244  HISTORY  OF  THE  COMMITTEE  [244 

bate  the  resolution  at  present  will  needlessly  irritate  the 
controversy."  Fessenden  replied  that  he  personally  was 
calm,  and  that  he  was  aware  of  no  effort  to  get  up  a 
wrangle  with  the  President.  He  had  not  tried  to  do  so,  but' 
he  believed  that  when  the  latter  in  a  message  to  the  Sen 
ate  tells  that  body  it  has  nothing  to  do  with  the  matter  of 
reconstruction,  it  is  time  the  judgment  of  Congress  be  ex 
pressed  on  that  subject.  Though  Sherman  again  pleaded 
for  delay  and  other  members  spoke  to  the  same  effect,  Fes- 
senden's  motion  was  carried,  26  to  19,  five  not  voting. 

Fessenden  then  made  an  elaborate  speech  advocating  the 
resolution  and  defending  the  committee  on  reconstruc 
tion.1  He  declared  his  committee  was  not  an  "  irrespon 
sible  central  directory,"  as  its  members  considered  them 
selves  merely  as  servants  of  Congress.  It  was  created  by 
Congress  in  order  to  obtain  information  in  regard  to  con 
ditions  in  the  southern  states.  This  information  the  Senate 
.and  House  had  a  right  to,  and  should  obtain  before  agree 
ing  to  admit  their  representatives,  even  if  they  should  be 
good  and  loyal  men.  He  continued : 

I  had  no  particular  interest  in  the  Freedmen's  Bureau  bill 
and  would  have  been  inclined  to  sustain  the  veto  had  not  the 
President  in  his  message  questioned  the  right  of  Congress  to 
enact  any  law  affecting  the  interests  of  the  late  Confederate 
states  while  they  are  not  represented.  To  have  voted  to  sus 
tain  the  veto  would  have  meant  the  endorsement  of  all  the 
President  said,  including  this  last  part  of  his  message.  I  do 
not  see  how  any  senator  could  endorse  this  part  of  his  message 
and  at  the  same  time  retain  his  own  self-respect  and  a  proper 
respect  for  the  rights  of  the  Senate.  I  believe  the  President 
meant  to  say  both  in  his  message  and  his  speech  that  the  ex 
tent  of  the  power  of  Congress  is  for  it  to  judge  of  the  cre 
dentials  of  representatives.  For  my  part,  I  believe  it  is  for 

1  Globe,  pp.  985  et  seq. 


245]  CONGRESS  v.  PRESIDENT  245 

Congress  and  Congress  alone  to  settle  the  question  of  whether 
those  states  are  entitled  to  representation,  and  I  believe  it 
should  do  so  without  dictation  or  even  advice  from  anybody. 

I  confess  the  committee  was  influenced  by  the  President's 
message  containing  the  foregoing  ideas,  when  it  saw  fit  to  pro 
pose  that  Congress  distinctly  state  its  power  over  the  subject 
of  reconstruction.  This  resolution  is  substantially  resuming 
the  form  of  the  original  proposition  as  introduced  into  the 
House  at  the  beginning  of  the  session.1  Though  I  did  not 
originally  think  this  part  of  the  resolution  necessary,  I  do  now, 
because,  under  the  circumstances  of  this  case,  with  this  at 
tempted  limitation  of  its  powers  with  regard  to  its  own  organi 
zation,  Congress  is  prepared  to  say  to  the  executive  and  to  the 
country:  "  Over  this  subject  we  have,  and  mean  to  exercise, 
the  most  full  and  plenary  jurisdiction;  we  will  be  limited  with 
regard  to  it  by  no  considerations  arising  from  the  views  of 
others,  except  so  far  as  those  considerations  may  affect  the 
minds  of  individuals;  we  will  judge  for  ourselves,  not  only 
upon  credentials  and  the  character  of  men,  but  upon  the  posi 
tion  of  states  that  sent  those  men  here."  In  other  words,  to 
use  the  language  of  the  President,  when  the  question  is  to  be 
decided  whether  they  obey  the  Constitution,  whether  they  have 
fitting  constitutions  of  their  own,  whether  they  are  loyal, 
whether  they  are  prepared  to  obey  the  laws;  we  will  say 
whether  those  preliminary  requirements  have  been  complied 
with,  and  not  he. 

In  concluding,  Fessenden  expressed  a  kindly  feeling 
towards  Johnson  and  said  he  did  not  believe  the  latter 
would  intentionally  injure  any  of  the  country's  institutions. 
He  thought  his  feelings  in  regard  to  Tennessee  had  carried 
him  further  in  expressing  his  disappointment,  than  in 
calmer  moments  he  would  have  been  willing  to  go. 

Three  days  later  John  Sherman  made  an  able  speech  in 

1  See  supra,  p.  37. 


246  HISTORY  OF  THE  COMMITTEE  [246 

opposition  to  the  resolution.1  He  admitted  the  Senate's 
legal  right  to  pass  it  but  saw  no  use  in  doing  so,  as  it  cer 
tainly  would  neither  quiet  the  public  mind  nor  close  agita 
tion  on  the  subject  as  the  committee  seemed  to  think.  The 
true  way  to  assert  the  power  of  Congress  over  reconstruc 
tion  was  to  exercise  it  and  say  nothing  about  it.  "  Sup 
pose,"  said  hey  ''''  the  twro  houses  cannot  agree  on  a  plan  of 
reconstruction,  must  these  eleven  states  stand  in  their  pres 
ent  isolated  condition  beyond  the  pale  of  civil  law  until 
they  can  agree  upon  some  proposition?  Should  the  two 
houses  thus  tie  each  other's  hands?"  He  didn't  think  so. 
In  fact  they  couldn't  do  so.  For  if  the  majority  in  either 
house,  even  after  the  passage  of  the  resolution,  should  de 
sire  to  exercise  its  undoubted  power  to  admit  senators  or 
representatives  from  the  southern  states,  the  other  house 
could  not  prevent  it.2  After  twitting  the  members  of  the 
committee  for  their  long  delay  in  formulating  a  plan  of  re 
construction,  he  passed  on  to  the  most  interesting  part  of 
his  speech,  wherein  he  coknmented  on  Johnson's  past  actions 
arid,  as  Rhodes  says,  "  held  out  the  olive  branch  "  to  him.3 
He  regai  led  it  as  a  great  misfortune  that  Congress  and 
the  Preside!, A  had  come  to  no  agreement  in  regard  to  a  plan 
of  reconstruction  before  the  war  had  ended,  and  he  main 
tained  that  in  ail  essentials  Johnson  had  followed  the  policy 
suggested  by  the  Wade-Davis  bill.  Congress  could  com 
plain  of  nothing  in  Johnson's  actions  up  to  and  including* 
the  veto  of  the  Freedmen's  Bureau  bill.  He  regretted  the 
22d  of  February  speech,  but  realized  that  the  gentlemen 
whom  Johnson  had  denounced  by  name  had  given  him  cause 

1  Globe,  appendix,  pp.  124-133. 

*  Fessenden  later  admitted  that  Sherman  was  correct  in  his  conten 
tion  as  to  the  power  of  each  house.    Globe,  p.  1143. 

*  PJhodes,  vol.  v,  p.  579. 


247]  CONGRESS  v.  PRESIDENT  247 

to  be  greatly  provoked,  and  he  intimated  that  they  richly 
deserved  what  had  been  said  of  them. 

He  believed  Tennessee  and  Arkansas  were  then  in  a  con 
dition  warranting  the  readmission  of  their  delegations  to 
seats  in  Congress.  The  weakness  of  the  position  of  Con 
gress  was  not  that  any  one  denied  its  power,  but  that  it  held 
no  lantern  to  the  ex-rebels ;  no  mode  by  which  they  could 
get  back  into  the  folds  of  the  Union.  Let  the  reconstruc 
tion  committee,  instead  of  asserting  the  power  of  Congress, 
report  a  resolution  fixing  the  manner  by  which  the  southern 
states  'may  come  back  into  the  Union,  by  which  their  loyal 
sons  might  be  represented  in  Congress. 

Fessenden  defended  the  committee  from  the  charge  of 
delay,  and  declared  that  nearly  all  the  information  which! 
the  committee  wanted  was  in  the  hands  of  the  President; 
that  although  the  House  and  Senate  had  both  asked  him  to 
furnish  it  to  the  committee,  he  had  not  seen  fit  to  do  so.  It 
was  therefore  necessary  that  the  cdmmittee  obtain  infor 
mation  for  itself  independently.  This  would  necessarily 
take  time;  hence  if  there  were  any  delay  the  blame  should 
l>e  imputed  not  to  the  committee  but  to  the  President.1 

Several  other  senators  spoke  on  the  resolution  but  only 
a  few  of  the  points  brought  out  by  them  need  be  noticed 
here.  Dixon,  an  administration  Republican  from  Connec 
ticut,  put  his  finger  on  the  main  difficulty  when  he  showed 
that  it  was  the  question  of  negro  suffrage  and  the  desire 
of  his  party  associates  to  add  to  their  political  strength 
thereby,  that  really  prevented  the  immediate  readmission  of 
the  southern  members  to  their  seats  in  Congress.  Any  other 
reasons  given  for  their  continued  exclusion  were  insincere 
and  manufactured  for  the  occasion.  He  then  appealed  to  all 
members  of  his  party  whose  actions  were  not  prompted 

1  Globe,  p.  1147. 


248  HISTORY  OF  THE  COMMITTEE  [348 

by  partisan  motives,  and  who  were  not  obsessed  with  the 
idea  of  universal  negro  suffrage,  to  join  with  him  in  taking? 
up  immediately  the  question  of  ad/mitting  the  southern  rep 
resentatives.  They  should  consider  in  the  case  of  each  state 
whether  it  is  in  the  Union,  whether  it  has  a  legislature, 
whether  its  people  are  loyal,  whether  the  public  safety  will 
permit  its  admission  and  whether  the  men  elected  are  fit  to 
be  admitted.1 

Nye,  a  Republican  from  Nevada,  quoted  the  words  of 
Cobden  to  the  effect  that  the  American  conflict  had  been  an 
"  aristocratic  rebellion  against  a  democratic  government." 
Since  the  battle  had  been  between  those  two  opposing  prin 
ciples,  he  contended  that  a  settlement  should  be  made  in  ac 
cordance  with  the  exact  issue  on  which  the  contest  had  been 
waged.  He  therefore  favored  the  passage  of  the  resolu 
tion  and  hoped  that  Congress  would  continue  to  exclude 
the  southern  states,  until  a  "  nationalizing  and  democratiz 
ing  "  policy  of  reconstruction  could  be  formulated  for 
them.2 

Stewart,  also  a  Republican  of  Nevada,  who  had  voted 
to  sustain  the  President's  veto,  but  later  went  over  to  the 
radicals,  stated  that  the  resolution  contained  an  untruth. 
'*  When  and  by  whom,"  said  he,  "  were  eleven  states  de 
clared  in  insurrection?"  Lincoln's  proclamation  of  Au 
gust  16,  1861,  said:  "  I  do  hereby  declare  that  the  inhabi 
tants  of  certain  states  and  parts  of  states  .  .  .  are  declared 
in  a  state  of  insurrection  against  the  United  States."  He 
protested  against  putting  the  late  President  in  a  false  posi 
tion,  for  if  there  wras  any  point  upon  which  he  was  care 
ful,  it  was  always  to  speak  of  inhabitants,  and  not  states,  in 
insurrection.  That  had  always  been  Lincoln's  theory,  the 
theory  on  which  the  war  had  been  fought,  and  had  been  in 
corporated  as  a  principle  in  the  Union  platform.  "  If  this 

1  Globe,  pp.  1039  et  seq.  2  Globe,  pp.  1069  et  seq. 


249  ]  CONGRESS  v.  PRESIDENT  249 

resolution  be  correct,  it  means  that  if  a  portion  of  the  peo 
ple  of  a  state  go  into  insurrection,  that  state  shall  be  ex 
cluded  from  representation  just  so  long  as  Congress  may 
elect.  I  do  not  say  that  principle  ever  will  be  applied  to 
any  other  section,  but  I  ask  you,  are  you  willing  so  to  apply 
it?"1 

Reverdy  Johnson  opposed  the  resolution  on  the  ground 
that  it  would  delay  still  further  the  restoration  of  the 
Union.  When  his  opponents  talked  about  danger  to  the 
government  resulting  from  the  admission  of  the  southern 
representatives,  he  feared  that  they  were  confusing  their 
party  with  the  government.  The  mass  of  the  southern 
people  were  honest  and  had  accepted  the  results  of  the  war 
in  good  faith;  he  was  therefore  certain  the  admission  of 
their  representatives  would,  instead  of  endangering  the 
country7,  prove  the  surest  way  to  the  establishment  of  its 
peace  and  prosperity.2 

The  vote  was  taken  on  March  2nd,  and  the  resolution 
passed,  29  to  18,  Sherman,  in  spite  of  his  speech,  voting  in 
the  affirmative.8  Its  adoption  by  the  Senate  had  a  signifi 
cance  quite  different  from  that  of  the  House.  In  the  latter 
body  it  was  in  the  nature  of  an  ultimatum  to  Andrew  John 
son  from  the  radicals  that  they  meant  to  wage  war  upon 
him  and  his  policy,  and  they  clearly  indicated  that  they  had 
no  desire  to  co-operate  with  him.  The  conservative  Repub 
licans  in  the  Senate,  who  held  the  balance  of  power,  meant 
to  tell  him,  kindly  but  firmly,  that  they  could  not  endorse 
his  policy  in  to  to ;  that  he  must  pay  some  respect  to  the  pre 
rogative  of  the  legislative  branch  of  the  government.  This 
is  the  interpretation  one  naturally  puts  on  Fessenden's  open 
ing  speech.  In  closing  the  debate,  he  clearly  told  the  radi 
cals  in  the  House,  that  the  majority  in  the  Senate  had  a 

1  Globe,  pp.  1079  et  seq.  *  Ibid.,  pp.  1107  et  seq. 

3  Ibid.,  p.  1147. 


250  HISTORY  OF  THE  COMMITTEE  [250 

perfect  legal  right,  in  spite  of  the  resolution,  to  act  inde 
pendently  and  admit  members  from  the  southern  states 
whenever  they  might  see  fit.  Moreover,  he  warned  them 
that  if  matters  ( should  go  so  far  as  to  show  that  they  were 
acting  unreasonably,  wilfully,  or  from  temper,  so  as  to  pro 
duce .  improper  delay,  he  would  advocate  the  Senate's  re 
versing  its  action  in  regard  to  the  resolution.1 

Andrew  Johnson  occupied  an  excellent  strategic  position 
during  the  early  days  of  March.  Two  courses  of  action  lay 
open  before  him.  !  In  the  first  place  he  could  vigorously 
maintain  his  stand Kipon  the  firm  ground  of  the  justice  and 
sufficiency  of  his  policy  of  reconstruction.!  Had  he  chosen 
this  course  he  should  have  recognized  at  once  the  fact  that 
the  Republican  party  had,  as  a  body,  gone  on  record  against 
him.  This  he  should  have  announced  boldly  to  the  public 
and  called  to  his  support  every  man  both  in  public  and 
private  life,  regardless  of  past  party  affiliations,  who  de 
sired  an  immediate  restoration  of  the  Union  on  the  princi 
ples  so  definitely 'enunciated  by  his  predecessor  and  himself. 
He  should  have  reorganized  his  cabinet  so  as  to  have  se 
cured  a  body  of  men  as  his  advisers,  distinguished  for  their 
patriotism : and  ability,  in  perfect  accord  with  his  policy,  and 
aggressive  in  action.  In  a  day  when  patronage  was  a  jus 
tifiable  weapon  to  use  in  a  political  fight,  and  \vhen  politi 
cians  played  the  game  largely  for  the  spoils,  he  should 
have  wielded  this  cudgel  on  behalf  of  his  friends  to  the  dis 
comfiture  of  his  foes.  True,  this  is  the  course  of  action 
which  he  did  eventually  pursue,  but  not  with  sufficient  vigor 
and  not  until  it  was  too  late  to  be  effectiveA 

His  second  course  of  action,  as  heretofore  said,  would 

*\f    have  been  to  come  to  an  understanding  with  about  a  dozen 

naturally  conservative  men  in  the  Senate.     This  he  never 

1  Globe,  pp.  1143  et  seq. 


2rjj  CONGRESS  v.  PRESIDENT  2$l 

had  a  better  opportunity  to  do  than  at  this  very  time.  In 
the  contest  over  the  declaratory  resolution,  Johnson  retained 
the  entire  following  that  had  sustained  his  veto.  In  addi 
tion,  John  Sherman  rendered  him  a  partial  support,  while 
Lane  of  Kansas  went  entirely  over  to  his  side.  The  latter, 
on  February  26th,  had  introduced  a  resolution  providing 
that  the  credentials  of  the  Arkansas  and  Tennessee  senators 
be  taken  from  the  desk  and  referred  to  the  judiciary  com 
mittee,  so  that  they  might  be  acted  upon  immediately.  This 
resolution  was  lost  by  a  vote  of  only  27  to  18,  the  absentees 
being  about  equally  divided  between  the  advocates  and  op 
ponents  of  the  measure.1  Thus  a  further  defection  of  five 
or  six  Republican  senators  from  the  policy  of  exclusion 
would  have  meant  the  entire  frustration  of  the  radicals' 
plans.  YThese  half-dozen  recruits  Johnson  could  easily  have 
securecUSy  signing  the  Civil  Rights  bill,  which  was  designed 
to  render  inoperative  the  southern  "  black  codes/*] 

Conservatives  of  the  type  of  Grimes,  Fessenden,  and 
Trumbull  desired  only  three  conditions  before  agreeing  to 
admit  properly  qualified  men  from  the  southern  states.  One 
was  that  the  basis  of  representation  be  changed;  but  after 
proposing  what  seemed  to  them  a  fair  adjustment  of  that 
question,  to  have  it  ruthlessly  spurned  by  the  extreme  radi 
cals  so  thoroughly  disgusted  them  that  it  is  quite  probable 
they  would  have  been  willing  to  abandon  the  proposition 
altogether.2  The  second  condition  was  that  the  negroes  in 
the  South  be  secured  in  their  civil  rights.  The  third,  and 
to  them  the  most  important  condition,  was  that  the  Presi 
dent  vindicate  their  contention  that  Congress  did  have  au- 

1  Globe,  pp.  1025-1027. 

-  See  supra,  p.  205.  The  exceedingly  acrimonious  debate  on  this 
proposition  between  the  extreme  radicals  and  conservatives,  as  re 
spectively  represented  by  Sumner  and  Fessenden,  occurred  between 
March  2nd  and  March  9th. 


252  HISTORY  OF  THE  COMMITTEE  [252 

thority  over  the  rebel  states  while  they  were  still  unrepre 
sented,  and  over  the  question  of  reconstruction.  These  men 
had  been  trained  in  that  old  school  of  politics  which  taught 
the  strict  separation  of  governmental  powers  and  the  rigid 
independence  of  the  legislative,  judicial  and  executive  de 
partments.  Their  honesty,  and  their  fidelity  to  the  prin 
ciple  of  the  equality  of  the  co-ordinate  branches  of  the  gov 
ernment,  caused  them  to  uphold  the  prerogative  of  the  legis 
lative  against  the  overgrown  pretensions  of  the  executive; 
as  later,  the  same  principle  caused  them  to  vote  against  the 
conviction  of  Andrew  Johnson  when  his  removal  would 
have  aggrandized  the  legislative  to  the  serious  detriment  of 
the  executive.  As  previously  indicated,  these  last  two  con 
ditions — guaranteeing  the  negroes'  civil  rights  and  the  pre 
rogative  of  Congress — the  President  could  have  fulfilled  by 
approving  the  Civil  Rights  bill. 

Before  entering  upon  the  last  phase  of  the  breach  between 
Johnson  and  Congress,  something  must  be  said  of  a  sort  of 
compromise,  which  for  a  short  time  appeared  to  give  some 
promise  of  being  successful.  Its  purpose  was  to  get  all  the 
factions  of  the  Union  party,  including  the  President,  the 
conservatives  and  the  radicals,  to  unite  in  adopting  a  com 
mon  policy  of  reconstruction.  Indeed  its  author  hoped  it 
would  prove  acceptable  to  the  southern  people  and  even  to 
the  Democrats.  This  all-embracing  scheme  was  embodied 
in  a  resolution  introduced  into  the  Senate  on  March  i6th, 
by  Stewart  of  Nevada.1  After  reciting  the  fact  that  negro 

1  Globe,  pp.  1437,  1438.  Stewart  was  a  cosmopolitan  sort  of  person 
who  had  settled  in  Nevada  only  a  short  while  previous  to  its  admission 
as  a  state.  He  was  the  son-in-law  of  Henry  S.  Foote,  a  former  mem 
ber  of  the  Confederate  Congress  from  Mississippi,  but  who  was  then 
living  in  New  York.  It  was  supposed  at  the  time  that  he  had  sug 
gested  the  plan  to  .Stewart,  but  this  was  denied  by  both  men.  Foote 
approved  the  plan,  however,  and  thought  if  it  should  be  offered  in 
good  faith  it  would  be  accepted  by  the  South.  'See  letter  of  Foote  in 
New  York  World,  March  23,  1866. 


253 ]  CONGRESS  v.  PRESIDENT  253 

suffrage  was  the  principal  stumbling-block  in  the  way  of  a 
speedy  restoration  of  the  Union,  it  provided : 

1.  That  each  of  the  states,  whose  people  were  lately  in  in 
surrection,  shall  be  recognized  as  having  resumed  its  former 
relations  with  this  government,  and  its  chosen  representatives 
shall  be  admitted  into  the  two  houses  of  the  national  legislature 
whenever  said  state  shall  have  amended  its  constitution  so 
as,  ist  to  give  the  negroes  equal  civil  rights;  2nd  to  repudiate 
its  war  debts;  3rd  to  yield  all  claims  for  slaves  liberated;  4th  / 
to  provide  for  the  extension  of  the  elective  franchise  to  all 
persons  upon  the  same  terms  and  conditions,  making  no  dis 
crimination  on  account  of  race,  color  or  previous  condition  of 
servitude:  provided,  that  those  who  were  qualified  to  vote  in 
the  year  1860  by  the  laws  of  their  respective  states  shall  not 
be  disfranchised  by  reason  of  any  new  tests  or  conditions 
which  have  been  or  may  be  prescribed  since  that  year. 

2.  That  when  the  aforementioned  conditions  shall  have  been 
complied  with  and  ratified  by  a  majority  of  the  present  voting 
population,  a  general  amnesty  shall  be  proclaimed. 

3.  That  all  the  loyal  states  be  respectfully  requested  to  in 
corporate  in  their  constitutions  an  amendment  corresponding 
with  the  one  above  described. 

4.  That  it  is  not  intended  to  assert  a  coercive  power  on  the 
part  of  Congress  in  regard  to  the  regulation  of  the  suffrage  in 
the  different  states,  but  only  to  make  an  appeal  to  their  own 
good  sense  and  love  of  country,  with  a  view  to  the  prevention 
of  serious  evils  now  threatened.1 

Stewart's  resolution  was  referred  to  at  the  time  as  a  plan 
to  restore  the  Union  on  the  basis  of  universal  amnesty  and 
universal  suffrage.  As  a  matter  of  fact,  it  practically  in 
vited  the  South,  so  far  as  negro  suffrage  was  concerned,  to 
adopt  the  principle  of  the  present  day  "  grandfather  clause/' 
Nevertheless  it  was  a  sincere  attempt  to  solve  in  a  patriotic 

1  The  resolution  as  here  printed  is  somewhat  abridged. 


254  HISTORY  OF  THE  COMMITTEE  [254 

way  the  knotty  problem  of  reconstruction  and  as  such  re 
ceived  respectful  consideration  from  thoughtful  people  who 
were  not  carried  away  by  racial  or  sectional  prejudice. 
Stewart  was  not  a  great  man  nor  was  he,  as  a  general  rule, 
free  from  party  bias,  but  it  is  not  too  much  to  say  that  his 
was  the  only  plan  of  reconstruction  ever  offered  by  a  man 
in  public  life  which  took  into  consideration  the  feelings  of 
the  people  both  of  the  South  and  of  the  North.  Had  it  been 
adopted,  the  great  amount  of  bitterness,  suspicion,  and  mis 
understanding  which  was  engendered  by  the  actual  process 
of  reconstruction  would  most  certainly  have  been  avoided. 

In  explanation  of  his  resolution,  Stewart  said  he  had 
carefully  observed  events  since  Congress  assembled,  and 
had  come  to  the  conclusion  that  a  proposition  of  this  kind 
corresponded  with  the  prevailing  sentiment  in  Congress  and 
also  in  the  country  as  indicated  by  the  public  press.  Not 
having  heard  from  the  southern  states  on  the  proposition, 
he  believed  it  but  fair  and  just  that  the  best  terms  Congress 
was  willing  to  grant  should  be  submitted  for  them  to  adopt 
or  reject.  His  plan  was  neither  coercive  nor  odious  in  its 
provisions,  and  at  the  same  time  it  avoided  the  long  delay 
attendant  upon  a  constitutional  amendment.  By  his  method 
of  procedure  alone  could  the  South  be  heard  from  during 
the  first  session  of  Congress,  and  should  his  offer  be  refused 
there  would  be  plenty  of  time  to  adopt  other  measures.  He 
pointed  out  that  what  he  proposed  in  the  way  of  negro  suf 
frage  accorded  with  the  telegram  sent  to  Governor  Sharkey 
of  Mississippi  by  the  President,  in  which  he  recommended 
that  negroes  possessing  certain  educational  or  property 
qualifications  be  allowed  to  vote.  He  therefore  believed 
that  he  could  be  depended  upon  to  give  the  proposition  his 
hearty  support. 

At  the  conclusion  of  his  speech  some  of  the  extreme  rad 
icals  gathered  around  Stewart  and  welcomed  him  as  a  new 


255]  CONGRESS  v.  PRESIDENT  255 

convert  to  the  doctrine  of  universal  suffrage.1  As  a  matter 
of  fact,  he  had  been  very  careful  to  refrain  from  express 
ing  himself  as  to  the  propriety  of  allowing  the  negroes  to 
vote.  At  the  same  time,  all  of  the  radicals,  except  Henry 
Wilson,  who  congratulated  him  refrained  from  committing 
themselves  to  the  doctrine  of  universal  amnesty. 

Stewart's  plan  was  well  received  by  the  country.  Speak 
ing  on  his  resolutions  a  week  or  so  later,  he  said  they  had 
been  indorsed  by  practically  every  important  Union  news 
paper  in  the  North,  and  that  he  had  received  numerous 
letters  from  prominent  persons,  including  ex-Governor  An 
drew,  of  Massachusetts,  urging  their  adoption.2  Moreover, 
at  least  three  prominent  southerners  favored  the  proposition 
as  a  final  settlement.5  The  New  York  Sun 4  and  Tribune  5 
both  gave  it  their  hearty  indorsement  and  hoped  that  it 
would  be  adopted.  Even  such  radical  journals  as  the  Na 
tion  6  and  the  Independent 7  recognized  its  justice  but 
doubted  if  the  South  would  accept  it  in  good  faith  and 
sincerity.  /  Finally  Andrew  Johnson  does  not  seem  to  have 
been  entirely-  hostile  to  the  idea.8  His  veto  of  the  Civil 
Rights  bill,  however,  put  its  adoption  as  a  compromise 
measure  beyond  the  realm  of  possibility;  and  though,  in  a 
somewhat  modified  form,  it  will  be  referred  to  again,  it  will 
be  rather  as  one  of  the  suggested  congressional  plans  of  re 
construction  than  as  a  compromise. 

1 

1  Globe,  pp.  1438,  1439. 

2  Ibid.,  pp.  1753,  1754.     Cf.  Stewart's  Reminiscences,  ch.  xxii. 

8  Ibid.    A.  H.  Stephens,  Henry  S.  Foote,  Gov.  Sharkey  of  Miss. 

4  ibid.,  March  19,  1866. 

6  Ibid.,  March  17  and  21,  1866. 

6  Ibid.,  March  22,  1866. 

7  Ibid.t  March  29,  1866. 

8  Welles,  vol.  ii,  p.  457. 


256  HISTORY  OF  THE  COMMITTEE  [256 

It  is  now  in  order  to  give  an  account  of  the  final  events 
in  the  progress  of  the  breach  between  Johnson  and  Con 
gress;  and  towards  its  consummation  as  in  its  beginning, 
the  question  of  Tennessee's  restoration  was  vitally  involved. 

On  March  5th,  the  committee  after  considerable  discus 
sion  finally  adopted  a  resolution  admitting  Tennessee  which 
contained  essentially  the  same  conditions  as  that  which 
Conkling  had  reported  on  February  iQth.1  This  resolution 
Bingham  reported  to  the  House  on  the  same  day  (March 
5th)  it  was  adopted  by  the  committee.2  He  asked  that  it  be 
recommitted  and  stated  that  he  would  bring  it  up  again 
within  a  fortnight.  As  a  matter  of  fact,  over  four  months 
elapsed  before  he  did  so.  The  disposal  made  of  it  by  Con 
gress  at  that  late  date  does  not  concern  us  here,  but  it  will 
be  considered  below  in  another  connection.3  There  are  two 
reasons  which  may  explain  why  the  Republicans  on  the 
committee,  after  reporting  the  resolution,  allowed  action 
on  it  to  be  deferred  for  so  long.  Neither  of  these  reasons 
is  absolutely  susceptible  of  proof,  however,  and  it  is  gener 
ally  unsafe  to  speculate  on  the  motives  of  men  when  one 
has  no  direct  documentary  evidence  to  sustain  his  state 
ments.  Nevertheless  two  hypotheses  are  here  suggested, 
but  with  the  qualifying  remark  that  either,  neither,  or  both 
may  be  incorrect.  The  former  involves  the  motives  of  the 
conservatives,  while  the  latter  has  to  do  with  those  of  the 
radicals. 

Bingham,  who  had  charge  of  the  resolution  and  who  on 
account  of  the  similarity  of  his  and  Fessenden's  views,  was 
probably  influenced  by  him,  asked  that  it  be  recommitted,  in 
order  to  await,  no  doubt,  the  action  of  the  President  on  the 

1  See  supra,  p.  68  and  p.  75. 

2  Globe,  p.  1189. 
s  Chap.  vii. 


2~j]  CONGRESS  v.  PRESIDENT  257 

Civil  Rights  bill.  His  object  in  reporting  it  was  to  let  John 
son  see  that  Congress  was  serious  in  the  demand  that  its 
power  over  reconstruction  be  recognized.  Had  the  Civil 
Rights  bill  been  signed,  it  seems  clear  that  the  conserva 
tives  would  have  made  every  effort  to  pass  the  Tennessee 
resolution  forthwith.1  Without  directly  approving  it  and 
without  contradicting  his  former  statements,  he  might  have 
allowed  it  to  become  law  by  reason  of  the  "ten  day  lapse," 
and  thereby  tacitly  agreed  to  the  assertions  made  by  Con 
gress  of  its  prerogative.  If  he  had  done  this,  as  he  should 
have,  the  conservatives  would  have  begun  to  pass  similar 
resolutions  with  regard  to  such  states  as  Arkansas,  North 
Carolina,  and  Georgia,3  which  according  to  the  evidence 
then  being  taken,  were  most  deserving  of  consideration.  If 
the  conservatives  in  the  House  had  not  been  able  to  obtain 
a  majority  for  such  resolutions,  and  they  probably  could 
not  have  done  so  at  first,  their  friends  in  the  Senate  doubt 
less  would  have  acted  alone,  and  eventually  the  majority 
of  the  representatives  of  necessity  would  have  joined  them. 
That  men  like  Fessenden  and  Grimes  in  the  Senate  and 
Bingham  and  Blow  in  the  House  had  in  mind  the  adoption 
of  such  a  policy  as  is  above  outlined,  would  seem  to  be 
proved  by:  (i)  the  abhorrence  in  which  they  held  the  ex 
treme  radicals  and  the  reluctance  with  which  they  eventu 
ally  were  led  to  act  with  them;  (2)  the  general  tenor  of 
their  speeches,  especially  those  of  Sherman  and  Fessenden 
in  the  Senate;  (3)  the  fact  that  in  committee  they  passed 

1  Welles,  vol.  ii,  pp.  441,  442. 

*  The  New  York  World  of  February  i/th  advised  the  President  to 
allow  the  resolution  for  admitting  Tennessee,  if  containing  obnoxious 
conditions,  to  become  law  by  this  means.     From  a  statement  made  to 
Welles,   March  3rd,  he  had   evidently  decided  to   accept  the  advice. 
Welles,  vol.  ii,  p.  443. 

*  Men  like  A.  H.  Stephens,  however,  would  hardly  have  been  ad 
mitted. 


258  HISTORY  OF  THE  COMMITTEE  [2-g 

the  resolution  for  admitting  Tennessee,  which  they  cer 
tainly  meant  should  be  acted  on  by  Congress  in  case  the 
Civil  Rights  bill  were  signed;  (4)  that  the  committee,  con 
trolled  by  conservatives,1  took  no  steps  whatever  toward 
formulating  a  congressional  plan  of  reconstruction  until 
after  the  veto  and  repassage  of  the  Civil  Rights  bill;  and 
this  in  spite  of  the  fact  that  radicals  both  in  and  out  of 
Congress, who  considered  the  breach  with  the  President  final 
after  the  22nd  of  February  speech,  were  making  a  per 
sistent  demand  that  the  committee  report  a  plan  counter  to 
that  of  the  President. 

If  the  purpose  of  the  conservatives  was  as  above  stated, 
the  question  naturally  arises  as  to  why  Thaddeus  Stevens 
voted  for  the  resolution  and  favored  having  it  reported  to 
the  House.  The  probable  answer  is  that  he  expected  by 
making  public  the  resolution  with  its  conditions  and  declar 
ations  obnoxious  to  Johnson  to  arouse  still  further  his  pug 
nacity  and  obstinacy  and  thereby  cause  him  to  veto  the 
Civil  Rights  bill,  as  the  radicals  wished  him  to  do.  Stevens 
did  not  desire  to  have  the  resolution  passed,  however,  for 
as  previously  stated  he  did  not  wish  to  have  a  precedent  set 
to  which  persons  advocating  the  admission  of  other  states 
might  refer.  Moreover,  like  most  other  Republicans  prob 
ably,  he  knew  that  one  and  perhaps  both  of  the  Tennessee 
senators  would  help  to  sustain  the  President's  vetoes.  Fin 
ally,  the  anger  raised  in  Johnson's  breast  at  first  seeing  the 
language  of  the  resolution,  might  be  partially  allayed  by 
passing  it;  for  he  so  very  much  desired  the  admission  of 
Tennessee  that  even  he  would  hardly  have  been  disposed  to 

1  I  class  as  conservatives,  Fessenden,  Grimes,  Harris,  Bingham  and 
Blow,  who,  with  the  three  Democrats,  constituted  a  majority.  Conk- 
ling  and  Williams,  though  later  violent  radicals,  at  this  time  tended  to 
be  conservative.  Fessenden  as  chairman  controlled  the  time  of  the 
committee's  meetings. 


259]  CONGRESS  i'.  PRESIDENT  259 

quarrel  a  great  deal  with  the  method  of  its  accomplishment. 
Though  Stevens  was  correctly  interpreting  the  attitude  of 
Johnson  towards  the  Tennessee  resolution,1  he  must  have 
felt  alarmed  at  the  possible  rupture  which  might  grow  out 
of  the  differences  between  radical  and  conservative  senators 
in  regard  to  the  amendment  on  the  basis  of  representation, 
the  debate  on  which  was  still  continuing  with  much  acri 
mony."  Moreover,  Stevens  doubtless  knew  what  the  inten 
tions  of  the  conservatives  were  to  be  with  regard  to  the 
other  states  in  case  the  President  accepted  the  Civil  Rights 
bill  and  the  Tennessee  resolution.  And  early  in  March  it 
seemed  to  most  observers  that  he  would  certainly  sign  the 
former  3  and  give  his  tacit  consent  to  the  latter.4  Indeed, 
there  is  little  doubt  that  when  the  bill  was  being  considered 
in  the  Senate,  it  was  his  intention  to  sign  it.  At  least  three 
senators  so  understood  his  attitude,  and  one  of  them,  Trum- 
bull,  its  author,  thought  it  had  been  framed  in  entire  har 
mony  with  Johnson's  views  and  with  what  he  had  been 
doing  for  the  protection  of  freedmen  in  their  civil  rights 
throughout  the  South.5  Finally  every  member  of  his  cabi 
net  except  two,  advised  him,  in  fact  urged  him,  to  sign  the 
bill.6 

Why  did  he  not  do  so?  The  answer  is  that  Thaddeus 
Stevens  understood  what  the  effect  of  his  signing  the  bill 
would  be  and  therefore  set  himself  the  task  of  preventing 

1  Welles,  vol.  ii,  p.  444. 

2  See  supra,  p.  205. 

8  Rhodes,  vol.  v,  pp.  581-583. 

4  See  supra,  p.  257,  note  2. 

5  Globe,  p.  1760.    The  other  two  senators  were  Sherman  and  Stewart; 
see  Sherman,  Letters,  p.  276,  and  Stewart's  Reminiscences,  pp.  198-200. 

6  Welles,  vol.  ii,  pp.  463,  464.     Rhodes,  vol.  v,  p.  583,  note  4,  says 
McCulloch  was  for  the  veto;  Welles  says  McCulloch  hoped  the  Presi 
dent  could  see  his  way  clear  to  sign  the  bill.     Seward  and  Welles  ad 
vised  the  veto. 


200  HISTORY  OF  THE  COMMITTEE  [26o 

it.  His  method  of  accomplishing  this  result  was  to  wield 
with  such  telling  effect  the  weapons  of  sarcasm  and  slander 
that  his  antagonist  would  be  forced  to  fight  back  with  what 
ever  weapon  he  could  lay  his  hand  on  easiest. 

During  the  early  days  of  March  the  House  for  the  first 
time  was  taking  a  brief  recess  from  discussing  reconstruc 
tion.  Every  Saturday,  however,  was  given  over  to  general 
debate  on  the  President's  message,  when  new  members  had 
an  opportunity  to  deliver  their  maiden  speeches,  which  were 
generally  filled  with  sentiment  for  delighting  their  admir 
ing  "  folks  back  home."  The  old  and  well-known  mem 
bers  who  could  talk  at  any  time,  did  not  as  a  rule  attend 
these  debating  sessions,  but  on  Saturday,  March  loth, 
Thaddeus  Stevens  was  in  his  seat.  Though  everybody 
knew  what  his  views  on  reconstruction  were,  he  rose  osten 
sibly  to  debate  that  much-discussed  question.1  He  begged 
the  pardon  of  the  members  for  imposing  upon  them  a 
speech  prepared  several  weeks  before  when  radical  ideas 
were  not  so  common.  He  feared  his  opinions  would  now 
appear  stale  and  ultra-conservative  in  comparison  with 
some  that  recently  had  been  expressed.  After  these  intro 
ductory  remarks,  he  declared  in  a  very  serious  tone  that  he 
had  no  feelings  of  hostility  toward  the  President  and  ex 
pressed  for  him  friendship  and  respect.  He  remembered 
the  courageous  and  patriotic  course  he  had  pursued  during 
the  war  and  for  his  past  record  he  could  say  nothing  ex 
cept  in  the  highest  praise. 

What  followed  these  laudatory  words  can  best  be  under 
stood  and  its  spirit  best  preserved  by  the  epitome  of  a  page 
from  the  old  Congressional  Globe. 

Mr.  Price  [radical  of  Iowa] — When  I  remember  that  the 
press  for  the  last  few  weeks  has  been  repeating  the  name  of  a 

1  Globe,  pp.  1307-1310. 


26l  ]  CONGRESS  v.  PRESIDENT  26  i 

certain  *'  Thaddeus  Stevens  "  as  having  been  used  by  the  Presi 
dent  in  a  recent  speech  at  the  White  House,  and  when  I  hear  a 
gentleman  whom  I  suppose  to  be  the  Thaddeus  Stevens  re 
ferred  to,  speak  in  such  terms  in  favor  of  the  President,  I  wish 
to  know  whether  he  is  the  same  gentleman  (laughter). 

Mr.  Stevens — Does  the  gentleman  suppose  the  speech  to 
which  he  refers  was  a  fact?  (Laughter.)  What  I  am  going 
to  say  now,  I  do  not  wish  to  have  reported.  It  is  a  confidential 
communication,  and  I  presume  gentlemen  will  not  violate  the 
confidence  I  repose  in  them  (renewed  laughter).  Sir,  that 
speech  was  one  of  the  grandest  hoaxes  ever  perpetrated.  I 
am  glad  to  have  this  opportunity  to  exonerate  the  President 
from  ever  having  made  that  speech  (renewed  laughter).  It 
is  a  part  of  the  cunning  contrivance  of  the  copperhead  party, 
who  have  been  persecuting  our  President  since  the  4th  of 
March  last.  Why,  sir,  taking  advantage  of  an  unfortunate  in 
cident  which  happened  on  that  occasion1  (laughter),  they 
have  been  constantly  denouncing  him  as  addicted  to  low  and 
degrading  vices.  To  prove  the  truth  of  what  I  say  about  this 
hoax,  I  send  to  the  clerk's  desk  to  be  read,  a  specimen  of  this 
system  of  slander,  printed  in  the  leading  paper  of  the  Demo 
cratic  party.  (The  clerk  read  as  follows  from  an  editorial  in 
the  New  York  World  of  March  7,  1865.) 

'  The  drunken  and  beastly  Caligula  raised  his  horse  to  the 
dignity  of  a  consul.  The  consulship  was  scarcely  more  dis 
graced  by  that  scandalous  transaction  than  is  our  Vice-Presi 
dency  by  the  late  election  of  Andrew  Johnson.  That  office  has 
been  adorned  in  better  days  by  Adams  and  Jefferson,  Calhoun 
and  Van  Buren.  And  now  to  see  it  filled  by  this  insolent, 
drunken  brute,  in  comparison  with  whom  even  Caligula's  horse 
was  respectable !  And  to  think  that  only  one  frail  life  stands 
between  this  insolent,  clownish,  drunkard  and  the  Presidency ! 
May  God  bless  and  spare  Abraham  Lincoln." 

Mr.  Stevens — We  never  credited  this  slander.    But  our  ene- 

1  Johnson  is  said  to  have  been  under  the  influence  of  alcohol  when 
inaugurated  as  Vice-President. 


262  HISTORY  OF  THE  COMMITTEE  [262 

mies,  being  unable  to  fix  such  odium  upon  our  President  by 
evidence  which  the  lawyers  would  call  aliunde,  they  resort  to 
another  expedient.  If  my  friend  before  me  (Bingham)  were 
trying  a  case  de  lunatico  inquirendo,  and  if  the  outside  evi 
dence  were  doubtful,  he  would  lead  the  alleged  lunatic  to 
speak  upon  the  subject  of  the  hallucination,  and  if  he  could 
be  induced  to  gabble  nonsense,  the  intrinsic  evidence  of  the 
case  would  make  out  the  allegation  of  insanity.  So,  Mr. 
Speaker,  if  these  slanderers  can  make  the  people  believe  that 
the  President  ever  uttered  that  speech,  then  they  have  made 
out  their  case  (laughter).  But  we  all  know  he  never  did  utter 
it.  They  had  wrought  it  up  in  such  a  cunning  way,  however, 
as  to  impose  upon  the  people.  They  even  went  into  attendant 
circumstances  in  minute  detail.  For  instance,  they  said  he  was 
accompanied  by  a  former  rebel  mayor  of  this  city  and  the 
counsel  for  the  assassins  of  the  late  President.  Now  I  know 
the  gentleman  is  satisfied  it  is  all  a  hoax. 

If  any  doubt  remains  as  to  whether  this  episode  was  pre 
arranged  and  the  slanderous  remarks  were  made  by  Stevens 
with,  malice  aforethought,  the  opinion  of  Gideon  Welles  1 
should  be  convincing.  Welles  had  a  remarkable  faculty  for 
understanding  the  character  and  interpreting  the  motives 
of  men. 

Thaddeus  Stevens  has  to-day  made  a  blackguard  and  dis 
reputable  speech  in  the  House.  Beginning  with  the  false  as 
sertion  that  the  speech  was  prepared  two  months  ago,  and  con 
tinuing  with  the  equally  false  assurance  that  an  interlude,  or 
byplay,  which  was  introduced  was  unpremeditated,  this 
wretched  old  man  displayed  more  strongly  than  in  his  speech 
fhose  bad  traits  of  dissimulation,  insincerity,  falsehood,  scan 
dal-loving,  and  defamation  that  have  characterized  his  long 
life.  The  radical  managers  and  leaders  were  cognizant  of  his 
speech,  and  had  generally  encouraged  it,  but  I  shall  be  disap- 

1  Diary,  March  10,  1866,  vol.  ii,  pp.  451,  452. 


263]  CONGRESS  v.  PRESIDENT 

pointed  if  they  do  not  wish  the  vain  old  man  had  been  silent 
before  many  months.  The  people  may  not  in  the  first  excite 
ment  and  under  the  discipline  of  party  be  enabled  to  judge  of 
the  conspirators  correctly  who  are  striving  to  divide  the 
Union,  not  by  secession  but  by  exclusion.  It  is  clearly  a  con 
spiracy,  though  not  avowed. 

Whether  Welles,  in  thinking  Stevens'  speech  indicated 
the  existence  of  a  conspiracy  to  divide  the  Union,  was  right 
or  not,  there  is  little  room  for  doubt  that  the  speech  itself 
was  intended  to  prevent  an  understanding  between  John 
son  and  the  conservatives.  Welles  was  under  the  same 
delusion  as  Johnson  in  thinking  the  Freedmen's  Bureau 
and  Civil  Rights  bills  were  fathered  by  the  radicals.  \Since 
Stevens'  speech  stimulated  Welles'  combativeness,  how 
much  more  must  it  have  fired  the  same  sort  of  spirit  in 
JohnsonM  Certainly  it  must  have  determined  him,  in  spite 
of  the  advice  of  his  best  friends,  to  veto  the  Civil  Rights 
bill.  \JDierefore,  on  March  27th,  he  returned  it  to  the  Sen 
ate  without  his  signature,  but  a  week  or  so  later  it  was  re- 
passed  by  a  two-thirds  majority  in  both  houses,  and  thus 
became  law,  the  objections  of  the  President  to  the  contrary 
notwithstanding.1  The  breach  between  Johnson  and  Con 
gress  was  completed.  The  conservatives  were  now  forced 
to  unite  with  the  radicals  in  enunciating  what  purported  to 
be  a  congressional  plan  of  reconstruction.  / 

Before  following  its  development  in  the  committee  and 
in  Congress,  a  brief  examination  should  be  made  of  the 
evidence  which  was  supposed  to  show  why  such  a  separate 
plan  was  necessary. 

1  Flack,  pp.  35-40- 


CHAPTER  V 

TESTIMONY  TAKEN  BY  THE    COMMITTEE — THE   RAISON 
D'ETRE  OF  THE  FOURTEENTH  AMENDMENT 

THE  sub-committees  which  were  appointed  on  January 
15th1  began  taking  testimony  about  January  2Oth,  and 
continued  their  labors  until  about  the  end  of  April.  There 
had  been  some  discussion  as  to  the  feasibility  of  allowing 
these  committees  to  travel  through  their  respective  districts 
and  examine  witnesses  in  the  localities  visited,  but  this 
plan  was  not  followed,  and  all  witnesses  were  examined  in 
Washington. 

This  was  the  first  enquiry  by  congressional  committee 
into  conditions  in  the  South  after  the  cessation  of  hostili 
ties,  but  it  was  not  the  last;  for  from  this  time  until  the 
close  of  the  Reconstruction  period  in  1877,  whenever  any 
extraordinary  event  occurred  in  any  portion  of  the  south 
ern  states,  Congress  took  it  upon  itself  to  appoint  a  com 
mittee  of  enquiry.  The  report  of  the  findings  of  these  per 
iodic  investigating  committees  generally  served  a  double 
purpose — first  as  an  excuse  for  some  proposed  legislation, 
and  second,  as  a  kind  of  chamber  of  horrors  where  the 
crimes  of  southern  "  rebels  and  traitors  "  against  "  loyal 
ists  "  were  exhibited  as  an  ominous  warning  to  the  north 
ern  voter  to  put  none  but  loyal  men  on  guard.  So  the  tes 
timony  taken  by  the  joint  committee  on  reconstruction 
served  as  the  raison  d'etre  of  the  fourteenth  amendment 
and  as  a  campaign  document  for  the  memorable  election  of 

1  See  supra,  p.  48. 
264  [264 


^•v 


265]  TESTIMONY  26$ 

1866.  150,000  copies  were  printed  in  order  that  senators 
and  representatives  might  distribute  them  among  their  con- 
stituents.1 

It  seems  strange  to  us  now  how  little  each  section  really 
knew  of  the  other,  and  how  eagerly  the  people  of  the  North 
especially  perused  all  sorts  of  information  concerning  con 
ditions  in  the  South.  That  this  testimony  was  read  by  the 
people  generally  in  the  North,  is  proved  by  the  fact  that  the 
newspapers  of  the  time  published  copious  extracts  from 
it,  as  it  was  made  public,  together  with  editorial  comments 
upon  it.  Moreover,  nearly  all  the  larger  newspapers  had 
kept  one  or  more  correspondents  traveling  through  the 
South  and  making  daily  reports  of  what  they  saw  and  heard 
there.  To  us  who  are  accustomed  to  news  columns  almost, 
if  not  entirely,  free  from  partiality  and  political  bias,  it  is  a 
source  of  wonder  how  not  the  views  only  but  the  news  of 
these  correspondents  varied  with  the  political  alignment  of 
the  proprietors  and  editors  of  their  respective  journals. 

The  evidence  that  was  given  before  the  committee  is  by 
no  means  free  from  bias,  and  in  many  instances  it  is  e.v 
parte.  In  the  winter  of  1865-66,  there  were  in  Washing 
ton  a  large  number  of  army  officers  who  had  seen  service 
in  the  South,  Freedmen's  Bureau  agents,  so-called  southern 
refugees,  both  black  and  white,  as  well  as  congressmen-elect 
from  the  southern  states,  who  were  awaiting  admission  to 
their  seats.  It  was  from  these  people  that  the  sub-com 
mittees  summoned  their  witnesses.  The  first  three  classes 
mentioned  were  hoping  that  Congress  would  undo  the  work 
of  the  President  in  the  South,  and  provide  for  the  establish 
ment  of  governments  there  after  the  manner  of  the  exist 
ing  governments  in  Tennessee  and  Missouri,  where  none 
could  vote  but  loyalists.  Consequently  in  giving  their  tes- 

1  Globe,  pp.  3325,  3326. 


266  HISTORY  OF  THE  COMMITTEE  [266 

timony  they  never  lost  sight  of  the  idea  of  influencing  in 
this  direction  such  legislation  as  would  follow. 

The  agents  of  the  Freedmen's  Bureau,  and  to  some  ex 
tent  the  army  officers,  were  of  the  type  who  later  became, 
under  the  operation  of  the  Reconstruction  acts,  genuine 
"  carpet  baggers ;  "  while  the  refugees  in  response  to  the 
same  stimuli  developed  into  full-grown  "  scalawags."  The 
real  southerners,  on  the  other  hand,  in  general  did  their 
cause  no  good,  but  harm  rather;  as  they  after  the  manner 
of  their  class  at  that  time,  and  being  encouraged  by  the 
position  of  the  President,  were  inclined  not  to  take,  as  a 
matter  of  course  and  as  results  of  the  war,  whatever 
changes  Congress  might  see  fit  to  make  in  the  funda 
mental  law  of  the  land;  but  seized  the  opportunity  afforded 
them  on  the  witness  stand  to  give  expression  to  their  out 
worn  political  philosophy.  A  perusal  of  Alexander  H. 
Stephens'  testimony  will  illustrate  the  truth  of  this  state 
ment.1  It  is  no  exaggeration  to  say  that  Stephens'  political 
philosophy,  as  given  before  the  committee  in  April  of  1866, 
is  a  political  curio.  In  a  nutshell,  it  is  that  a  state  may  se 
cede  at  will,  may  return  to  its  allegiance  at  will,  and  having 
so  returned,  is  entitled  to  resume  its  former  relations  with 
out  submitting  to  any  conditions  precedent.  However 
prevalent  such  political  philosophy  then  was  in  the  South, 
it  was  not  very  palatable  to  those  northern  people  who  de 
sired  that  all  the  fruits  of  the  war  should  be  harvested  be 
fore  southern  members  were  again  admitted  into  Congress. 

As  has  been  seen,  there  was  not  entire  unanimity,  how 
ever,  among  Republicans  as  to  what  the  "fruits  of  the  war" 
were,  but  even  the  most  conservative  believed  that  all  of 
the  guarantees  later  embraced  in  the  fourteenth  amend 
ment  should  be  included.  These  guarantees,  it  will  be  re 
membered,  were  four  in  number:  (i)  Equality  of  civil 

1  Testimony,  part  iii,  pp.  158-166. 


267]  TESTIMONY  267 

rights,  without  regard  to  race  or  color;  (2)  The  guarantee 
of  the  validity  of  the  United  States  debt,  including  debts 
incurred  for  payment  of  pensions  and  bounties,  the  repu 
diation  of  all  rebel  debts  and  a  constitutional  denial  of  the 
validity  of  claims  for  slaves  emancipated  or  property  de 
stroyed  during  the  war;  (3)  Exclusion  of  the  more  promi 
nent  rebels  from  office;  (4)  A  more  equitable  basis  of  rep 
resentation,  so  that  the  vote  of  a  southern  "  traitor  "  should 
not  equal  the  votes  of  two  loyal  soldiers  in  the  North.  The 
questions  asked  the  witnesses  generally  had  a  bearing  on 
these  matters  and  were  intended  to  show  the  necessity  for 
some  such  guarantees  as  the  foregoing.  Numerous  reso 
lutions  proposing  amendments  to  the  Constitution  and  con 
taining  one  or  more  of  these  guarantees,  had  been  intro 
duced  into  Congress  during  December  of  1865  and  Janu 
ary  of  1866.  So  the  testimony  served  not  to  create  in  the 
minds  of  the  committee  and  of  Congress  any  new  ideas  as 
to  what  measures  ought  to  be  passed,  but  simply  to  confirm 
them  in  the  opinion  that  these  four  guarantees  introduced 
previous  to  the  taking  of  the  testimony  wrere  necessary. 

Since  the  first  measure  which  Congress  proposed  to  pass 
was  that  one  giving  equal  civil  rights  to  the  negroes,  it  was 
necessary  that  the  sub-committee  produce  evidence,  show 
ing  that  no  such  equality  then  existed  and  that  as  a  conse 
quence  the  rights  of  the  freedmen  in  the  South  \vere  not 
respected.  Therefore,  one  of  the  first  and  most  important 
questions  asked  of  almost  every  witness  was  in  regard  to 
the  condition  of  the  freedmen  and  the  treatment  accorded 
them  by  the  whites.  Of  a  hundred  and  twenty-five  per 
sons  \vho  were  asked  whether  there  was  not  general  hos 
tility  and  even  frequent  cruelty  towards  the  freedmen  on  the 
part  of  southern  whites,  eighty-nine  replied  in  the  affirma 
tive,  while  only  thirty-six  gave  a  negative  answer.1  A  still 

1  Testimony,  part  iv,  pp.  171-173. 


268  HISTORY  OF  THE  COMMITTEE  [268 

further  proof  that  these  "  wards  of  the  nation  "  could  not 
be  entrusted  with  safety  to  the  tender  mercies  of  their 
former  masters,  is  attested  by  the  fact  that  seventy-three 
witnesses  emphatically  declared  that  the  presence  of  the 
Freedmen's  Bureau  and  of  United  States  troops  was  nec 
essary  in  the  South,  while  only  nine  denied  the  existence  of 
any  such  necessity.1  These  witnesses  said,  moreover,  that 
so  long  as  equality  of  civil  rights  was  denied  the  freedmen, 
United  States  authority  must  be  continued;  but  if  the  negro 
were  given1  free  entrance  to  the  witness  stand,  and  some 
said,  to  the  ballot-box,  he  would  be  able  to  protect  his  own 
interests  without  outside  assistance.  That  this  hostility 
towards  the  negroes  was  not  caused  by  their  alleged 
shiftlessness  and  general  tendency  to  idleness  and  crime, 
but  rather  by  the  natural  prejudice  and  ill-temper  of 
the  whites,  is  indicated  by  the  fact  that  fifty-nine  wit 
nesses  declared  their  belief  in  the  fitness  and  disposition 
of  the  freedmen  for  free  labor,  while  only  four  thought 
that  slavery  was  the  only  condition  to  which  they  were 
adapted.2  Eleven  persons  testified  that  the  southern 
people  were  hostile  to  the  idea  of  free  labor,  while 
only  four  thought  that  they  were  reconciled  to  it.s  Be 
fore  reading  such  typical  parts  of  the  testimony  as  is 
given  below  one  should  remind  himself  that  while  possibly 
the  witnesses  did  not  as  a  rule  perjure  themselves,  they 
gave  neither  a  fair  nor  a  complete  picture  of  conditions  in 
the  South  during  the  winter  of  1865-66.  As  has  already 
been  said,  a  great  many  of  them  expected  to  benefit  them 
selves  by  persuading  Congress  to  pursue  a  course  of  legis 
lation  favorable  to  their  own  political  ambitions.  More 
over,  their  inquisitors  likewise  had  personal  ends  to  serve 
and  were  bent  upon  proving  by  the  evidence  that  their 

1  Testimony,  part  iv,  pp.  170171. 

1  Ibid.,  pp.  173-174.  3  Ibid.,  part  iv,  p.  174- 


269]  TESTIMONY  269 

favorite  nostrums  were  the  correct  prescriptions  for  the 
maladies  in  the  body  politic  of  the  South.  Therefore,  as  a 
revelation  of  the  actual  social,  economic  and  political  con 
ditions  in  the  South  the  testimony  is  not  very  reliable,  and 
hence  it  is  not  analyzed  primarily  with  the  idea  of  making 
such  a  revelation.  The  purpose  of  the  analysis  is  to  pre 
sent  the  more  or  less  questionable  facts  which  served  the 
double  purpose  of  corroborating  the  ideas  of  the  members 
of  Congress  as  to  the  proper  mode  of  reconstruction,  and 
promoting  the  defence  of  these  ideas  before  the  people. 

The  following  extracts  from  the  testimony  in  regard  to 
the  treatment  of  the  freedmen  will  tend  to  show  why  Con 
gress  was  determined  to  pass  such  measures  as  the  Freed-- 
men's  Bureau  bill,  the  Civil  Rights  bill,  and  the  civil  rights 
resolution  for  amending  the  Constitution. 

Dr.  Daniel  Norton  (colored),  of  Yorktown,  Va.,  upon 
being  asked  what  the  whites  would  do  with  the  negroes  in 
case  the  military  force  and  Freedmen's  Bureau  should  be 
removed,  replied : x 

I  do  not  think  that  the  colored  people  would  be  safe.  They 
would  be  in  danger  of  being  hunted  and  killed.  The  spirit  of 
the  white  against  the  black  is  much  worse  than  it  was  before 
the  war;  a  white  gentleman  with  whom  I  was  talking  made 
this  remark:  he  said  he  was  well  disposed  toward  the  colored 
people,  but  that  finding  that  they  took  up  arms  against  him,  he 
had  come  to  the  conclusion  that  he  never  wanted  to  have  any 
thing  to  do  with  them,  or  to  show  any  spirit  of  kindness  toward 
them. 

Rev.  William  Thornton  (colored),  of  Hampton,  Va.2 

Question.    What  acts  of  unkindness  can  you  mention? 
Answer.     Some  days  ago  an  old  gentleman  named  Hough- 

1  Testimony,  part  ii,  p.  52.  2  Ibid.,  p.  53. 


270  HISTORY  OF  THE  COMMITTEE  [270 

ton,  a  white  man  living  in  the  neighborhood  of  my  church, 
was  in  the  church.  In  my  sermon  I  mentioned  the  assassina 
tion  of  Mr.  Lincoln.  Next  day  I  happened  to  meet  Houghton, 
who  said  to  me,  "  Sir,  as  soon  as  we  can  get  these  Yankees 
off  the  ground  and  move  that  Bureau,  we  will  put  you  to 
rights ;  we  will  break  up  your  church,  and  not  one  of  you  shall 
have  a  church  here."  Said  I,  "  For  what ?  I  think  it  is  for  the 
safety  of  the  country  to  have  religious  meetings,  and  for  your 
safety  as  well  as  everybody  else's."  "  We  will  not  have  it, 
sir,"  said  he,  and  then  he  commenced  talking  about  two  classes 
of  people  whom  they  intended  to  put  to  rights,  the  colored 
people  and  the  loyal  white  men.  I  asked  him  in  what  respect 
he  was  going  to  put  them  to  rights ;  said  he,  "  That  is  for  my 
self." 

Question.  Is  he  a  man  of  standing  and  condition  in  the 
neighborhood  ? 

Answer.     He  owns  property  there. 

Question.    Is  he  a  rebel? 

Answer.    Oh,  yes. 

Question.  Can  you  speak  of  any  acts  of  violence  committed 
by  the  whites  upon  the  blacks? 

Answer.  Yes,  sir ;  about  three  weeks  ago  a  colored  man  got 
another  one  to  cut  some  wood  for  him,  and  sent  him  into  the 
woods  adjoining  the  property  of  a  Mr.  Britner,  a  white  man. 
The  colored  man,  not  knowing  the  line  between  the  two  farms, 
cut  down  a  tree  on  Britner  s  land,  when  Britner  went  into  the 
woods  and  deliberately  shot  him  as  he  would  shoot  a  bird. 

Question.     Was  he  not  indicted  and  punished  for  that? 

Answer.    They  had  him  in  prison. 

Question.    Is  he  not  in  prison  now  ? 

Answer.  I  heard  that  they  had  let  him  out  last  Sunday 
morning. 

Question.    Do  you  know  any  other  instances  of  cruelty? 

Answer.  I  have  church  once  a  month  in  Matthews  county, 
Virginia,  the  other  side  of  the  bay.  The  last  time  I  was  over 
there  an  intelligent  man  told  me  that  just  below  his  house  a 
lady  and  her  husband,  who  had  been  at  the  meeting,  received 


271]  TESTIMONY  2;7I 

thirty-nine  lashes  for  being  there,  according  to  the  old  law  of 
Virginia,  as  if  they  had  been  slaves.  This  was  simply  because 
they  were  told  not  to  go  to  hear  a  Yankee  darky  talk.  They 
said  he  was  not  a  Yankee  but  a  man  born  in  Virginia,  in 
Hampton. 

Question.     Why  did  they  not  resist  being  flogged? 

Answer.    They  are  that  much  down. 

Question.     Did  they  know  that  they  had  a  right  to  resist  ? 

Answer.     They  dare  not  do  it. 

Question.     Why. 

Answer.  I  do  not  know.  On  the  ist  of  January  we  had  a 
public  meeting  there,  at  which  I  spoke.  The  next  night  when 
I  was  coming  from  the  church,  which  is  about  a  mile  and  a 
half  from  my  house,  I  met  a  colored  man  who  told  me  that 
there  was  a  plot  laid  for  me;  I  went  back  to  the  church  and 
got  five  of  my  church  members  to  come  with  me.  I  afterwards 
learned  that  a  fellow  named  Mahon,  a  white  man,  had  deter 
mined,  for  my  speech  that  day,  to  murder  me  the  first  chance. 

Question.  Did  that  come  to  you  in  so  authentic  a  form  as 
to  leave  no  doubt  upon  your  mind? 

Answer.  I  believe  he  made  the  threat.  The  next  day  he 
said  to  me,  "  We  hope  the  time  will  soon  come  that  these 
Yankees  will  be  away  from  here,  and  then  we  will  settle  with 
you  preachers."  That  gave  me  to  understand  that  the  threat 
was  made. 

Mr.  Ezra  Heinstadt,  a  loyalist  attorney  of  New  Orleans, 
La.1 

Question.  Would  it  or  not,  in  your  judgment,  be  safe  for 
the  loyal  people  of  Louisiana,  both  white  and  black,  to  with 
draw  from  that  state  at  this  time  the  military  power  and  super 
vision  of  the  Federal  Government? 

Answer.  I  unhesitatingly  say  that  I  do  not  consider  it 
would  be  safe  for  them  to  do  so.  My  opinion  is  that  if  the 

1  Testimony,  part  Hi,  p.  24. 


272  HISTORY  OF  THE  COMMITTEE  [272 

entire  force  of  the  Federal  Government  were  withdrawn  from 
the  state  of  Louisiana  the  Union  men,  as  we  call  those  who 
were  loyal  during  the  rebellion,  would  be  driven  from  almost 
all  the  rural  portions  of  the  state  at  least,  if  not  from  the  city 
of  New  Orleans,  and  the  condition  of  the  blacks  would,  to  a 
certain  extent,  be  worse  than  it  was  when  slavery  existed  there, 
for  they  would  be  controlled  by  force  in  such  a  way  as  to  be 
left  very  little  liberty  whatever. 

Question.  What  is  the  feeling  there  generally  among  those 
who  have  been  in  the  rebellion  as  to  managing  the  blacks 
properly  without  physical  compulsion? 

Answer.  The  general  impression  is  that  it  cannot  be  done ; 
that  the  negroes  will  not  work  unless  by  the  application  of 
physical  force  to  compel  them  to  do  so. 

Question.  Suppose  the  power  of  the  Federal  Government 
were  withdrawn,  in  your  judgment  what  would  be  the  course 
of  the  people  in  legislating  in  regard  to  the  blacks?  Would 
they  seek  in  spirit  to  restore  a  system  of  servitude,  or  would 
they  in  good  faith  carry  out  the  spirit  of  the  emancipation 
amendment  of  the  Constitution? 

Answer.  As  to  that  I  would  refer  you  to  the  enactments  of 
the  legislature  of  Louisiana  recently  in  session.  They  passed 
most  stringent  laws,  making  it  a  highly  penal  offence  for  any 
one  to  do  anything  that  might  be  construed  into  encouraging 
the  blacks  to  leave  the  persons  with  whom  they  had  made  con 
tracts  for  labor;  and  also  making  it  a  misdemeanor  for  the 
blacks  to  do  so,  subjecting  them  to  be  arrested  as  vagrants  and 
_sold  as  such  during  the  remaining  portion  of  the  time  for 
which  they  had  contracted,  and  giving  the  preference  in  buying 
them  at  such  rate  to  the  persons  with  whom  they  had  made 
contracts.  There  have  been  several  instances  in  the  parishes 
where  the  local  authorities  have  passed  most  stringent  ordi 
nances  upon  the  subject,  but  which  have  been  overruled  by  the 
military  authorities.  I  will  refer  here  to  what  was  done  in  one 
instance.  When  Brigadier-General  Fullerton  assumed  the  con 
trol  of  the  affairs  of  the  Freedmen's  Bureau  in  the  city  of  New 
Orleans,  some  time  during  last  fall — I  do  not  remember  the 


273]  TESTIMONY  273 

exact  date — he  issued  an  order  that  all  persons  of  color  in  and 
about  the  city  of  New  Orleans  who  did  not  produce  evidence 
immediately  of  being  employed  should  be  arrested  as  vagrants. 
The  consequence  was  that  in  the  course  of  twenty-four  or 
forty-eight  hours  a  very  large  number  of  colored  persons  who 
were  found  upon  the  streets  without  evidence  of  employment 
with  them  were  put  in  prison.  After  that  state  of  things  had 
continued  for  some  forty-eight  hours  the  order  of  General 
Fullerton  was  revoked  by  order  of  General  Canby,  the  com 
mander  of  the  department,  and  those  persons  were  set  at  lib 
erty.  I  will  make  this  general  statement,  that  from  the  habits, 
the  universal  and  long  continued  habits  of  life  of  the  white 
population  of  Louisiana  in  the  government  of  slaves,  it  is  very 
generally  believed  by  them  that  the  negroes  will  not  work — • 
that  they  will  become  an  idle  and  thriftless  population  unless 
their  labor  can  be  controlled  by  force ;  that  is  the  general  im 
pression.  My  own  opinion  upon  that  subject,  formed  from 
long  experience  in  Louisiana,  and  a  pretty  general  acquaintance 
with  the  planting  interests,  is  that  in  a  short  time,  when  the 
negroes  shall  experience  the  necessity  of  labor  in  order  to  live, 
they  will  become  an  industrious  population.  A  great  deal  of 
the  labor  of  the  city  of  New  Orleans  is  now  being  performed 
by  them. 

Question.  Are  the  negroes  now  willing  to  work  for  those 
who  they  believe  treat  them  kindly,  and  give  them  fair  wages  ? 

Answer.  Well,  sir,  so  far  as  my  observation  extends — and 
I  have  looked  into  this  subject  considerably — the  disposition  of 
the  negroes  generally  is  to  go  to  work  for  those  who  will  treat 
them  properly  and  pay  them  a  fair  compensation. 

Question.  What  is  the  prevailing  sentiment  among  the 
rebels  in  regard  to  allowing  negroes  to  become  landholders  in 
the  state? 

Answer.  There  is  a  very  general  opposition  to  that,  as  well 
as  to  the  education  and  moral  improvement  of  the  negro  race. 
But  the  opposition  to  negroes  holding  property  is  not  so  great 
in  Louisiana  as  it  is  in  some  of  the  adjoining  states,  from  the 
fact  that  from  time  immemorial  free  negroes  have  been  land- 


274  HISTORY  OF  THE  COMMITTEE  [274 

holders  in  Louisiana.  I  will  add  that  this  is  more  particularly 
directed  against  those  negroes  who  were  lately  slaves  than 
against  what  we  call  in  Louisiana  free  colored  persons,  of 
whom  there  have  been  a  very  large  number  in  the  state  for  a 
great  many  years. 

Question.  Judging  from  your  observation  and  means  of  in 
formation,  what  would  you  suggest  as  the  suitable  remedy  to 
be  employed  by  the  Federal  Government  for  the  evils  to  which 
you  have  referred  as  existing  in  the  state  of  Louisiana? 

Answer.  The  first  great  requisite,  that  which  I  imagine 
would  have  the  best  influence  in  settling  the  state  of  things  in 
Louisiana,  would  be  to  maintain  for  some  years  a  rigid  admin 
istration  of  the  Freedmen's  Bureau  to  protect  the  blacks  in 
their  rights,  as  well  as  to  see  that  they  complied  with  the  rea 
sonable  and  proper  contracts  they  might  make.  I  consider  that 
such  an  establishment  would  stand  as  a  barrier  to  the  en 
croachments  of  one  class  upon  the  rights  of  the  other.  In  re 
gard  to  political  matters,  I  consider  that  it  would  be  a  solecism 
in  government  for  us  to  have  states  containing  different  classes 
of  population,  one  class  of  which,  almost  equal  in  numbers  to 
the  other  class,  being  entirely  debarred  from  the  exercise  of 
the  elective  franchise. 

Major  General  Edward  Hatch,1  who  had  been  stationed 
in  Mississippi  and  Alabama  after  the  close  of  the  war, 
gave  the  following  testimony : 

Question.  What  is  the  disposition  of  the  people  there 
towards  the  colored  population? 

Answer.  The  poorer  classes  of  the  white  people  have  an 
intense  dislike  towards  them.  So  far  as  any  love,  or  regard  or 
care  for  the  negro,  or  the  slave,  I  have  never  seen  any  of  it, 
and  do  not  believe  it  ever  existed,  except  so  far  as  his  former 
money  value  may  have  caused  care  for  him.  There  are  men  in 
Mississippi  who  are  willing  to  accept  the  state  of  affairs  as 

1  Testimony,  part  iii,  p.  5. 


275]  TESTIMONY  275 

they  are  now,  and  to  employ  the  negro  and  pay  him  a  fair  re 
ward  for  his  services.  But  a  great  portion  of  the  people  of 
Mississippi  are  not  of  large  enough  views  to  understand  this 
matter.  They  wish  to  control  the  negro  and  his  labor  in  such  a 
way  that  he  will  be  compelled  to  remain  with  them  for  never 
less  than  a  year,  and  upon  their  own  terms. 

Question.  According  to  your  observation,  what  is  the  dis 
position  of  the  negroes  in  reference  to  working,  if  they  can 
be  assured  of  pay  for  their  work? 

Answer.  We  have  always  found  them  very  ready  to  work. 
I  have  seen  no  instance  where  they  were  not  willing  to  work 
when  they  have  been  assured  of  their  rights.  The  superin 
tendent,  who  by  the  way  was  a  northern  man,  of  the  work  of 
opening  the  Mobile  and  Ohio  railroad,  told  me  that  the  negro 
men  whom  he  had  to  work  for  eight  dollars  a  month  and  army 
rations  worked  as  well  as  any  men;  that  men  never  worked 
better.  We  issued  the  rations  to  those  negroes  working  on 
that  road.  We  issued  no  rations  to  indigent  negroes,  though 
we  issued  a  large  amount  of  rations  to  indigent  whites ;  also  a 
large  amount  of  Confederate  corn  that  we  had  taken,  and  I 
run  one  or  two  mills  to  grind  corn  to  feed  them.  We  never 
issued  a  ration  to  an  indigent  negro  while  I  was  there. 

Question.     WThy  not. 

Answer.  They  never  asked  for  any.  I  stopped  issuing  to 
the  whites,  but  they  made  so  many  complaints  that  I  was  or 
dered  to  commence  issuing  again.  They  were  in  a  starving 
condition,  as  the  armies,  the  Confederate  as  well  as  our  own, 
had  gone  over  the  country  and  nearly  eaten  it  up.  I  have  al 
ways  found  the  negro  ready  to  work  when  he  was  assured  that 
he  would  be  paid  according  to  his  contract. 

Question.  As  a  general  thing,  would  northern  men  be 
kindly  received  who  might  go  to  Mississippi  to  live? 

Answer.  No,  sir ;  there  is  a  very  intense  antipathy  towards 
northern  men  in  all  Mississippi,  with  perhaps  an  occasional 
exception.  I  have  heard  them  say  that  no  northern  man  should 
come  there  and  work  their  plantations  and  live  among  them, 
unless  he  was  an  overseer  under  them,  or  something  of  that 


276  HISTORY  OF  THE  COMMITTEE  [2?6 

kind;  that  he  could  not  come  there  and  expect  to  own  a  plan 
tation.  There  is  no  doubt  at  all  that  there  is  an  intense  hatred 
felt  towards  northern  men.  They  may  from  policy  sometimes 
perhaps  consent  to  use  a  northern  man  for  some  purpose.  But 
in  the  portion  of  the  state  where  I  have  been  I  have  seen  no 
evidence  of  good  feeling  towards  northern  men. 

Question.  Is  there  a  disposition  among  the  people  of  that 
state  to  discourage  the  negro  from  purchasing  land  ? 

Answer.  From  all  that  I  heard  the  people  say,  I  should 
say  that  the  disposition  was  to  discourage  the  negro  from  pur 
chasing  land.  The  owners  of  the  large  plantations  do  not  wish 
to  cut  up  their  plantations  at  all,  and  all  the  good  land  in 
Mississippi  is  generally  owned  by  the  large  planters.  The  val 
ley  of  the  Tombigbee  contains  a  very  large  negro  population, 
and  the  planters  have  always  hoped  to  work  their  plantations 
with  the  negroes  since  the  surrender.  I  suppose  that  at  one 
time  they  found  a  great  deal  of  trouble  in  doing  so.  The  ne 
groes  were  afraid  to  contract  with  their  old  masters  for  fear 
they  would  be  brought  into  slavery  again,  although  they  knew 
they  were  free.  Their  masters  wanted  to  work  the  negroes 
for  $75  a  year,  although  they  used  to  pay  $200  a  year  for 
their  work.  The  negro  was  shrewd  enough  to  understand  the 
difference  in  price,  and  thought  it  strange  he  was  not  worth  as 
much  as  before.  We  found  the  negroes  willing  to  go  to  work 
on  their  old  plantations  whenever  they  were  assured  that  they 
would  be  paid.  I  myself  told  the  negroes  at  the  time  of  the 
surrender  that  it  would  be  much  better  for  them  to  go  back  on 
the  plantations  to  work,  and  that  they  would  be  secured  under 
their  contracts  as  long  as  I  was  there  and  the  troops  were 
there;  and  a  large  portion  of  the  negroes  did  so.  This  was 
some  time  before  the  Freedmen's  Bureau  took  charge  of  them. 

The  testimony  of  former  provisional  Governor  James 
Johnson,  of  Georgia,1  while  general  in  its  nature,  was  per 
haps  fair  and  impartial. 

1  Testimony,  part  iii,  p.  129. 


277]  TESTIMONY 

Question.  The  object  of  the  committee  is  to  ascertain  the 
condition  of  Georgia,  and  the  sentiments  of  the  people  with 
reference  to  this  Government;  how  far  they  are  loyal,  and 
how  far  they  are  disloyal ;  and  we  would  be  glad  to  have  you 
give  your  opinions  upon  that  subject,  and  any  facts  you  may 
have. 

Answer.  The  condition  of  public  affairs  in  Georgia,  in  my 
estimation,  is  improving  now,  and  has  been  improving  for 
some  time  past.  Our  people  are  becoming  better  satisfied, 
with  the  lapse  of  time,  and  their  passions  are  gradually  abat 
ing.  As  an  evidence  of  this  fact,  I  could  point  to  the  legisla 
tion  of  the  state  on  particular  subjects;  the  provisions  which 
are  being  made  by  law  for  the  protection  of  freedmen,  and 
securing  them  in  their  rights.  While  I  say  that  our  people 
are  gradually  improving,  it  is  due  to  truth  that  I  should  say 
there  are  individual  exceptions.  We  have  some  bad  men 
among  us,  whose  passions  have  not  yet  abated;  but  there  are 
not  a  great  many  of  them.  Immediately  after  emancipation 
went  into  actual  effect,  there  was  some  hostility  manifested 
towards  the  negroes,  by  some  classes  of  persons.  But  that 
hostility  is  abating,  particularly  on  the  part  of  those  who  for 
merly  owned  slaves.  I  would  qualify  this  general  remark,  by 
saying  that,  whilst  it  is  true  of  the  most,  there  are  individual 
exceptions;  there  are  individual  cases  of  outrage  and  wrong 
perpetrated  upon  the  freedmen.  But  such  acts  do  not  meet  the 
approval  of  the  great  masses  of  our  people.  This  being  true, 
that  there  are  violent  men,  evil-disposed  men,  as  a  matter  of 
course  they  easily  associate  themselves  together;  and  a  few 
men  can  do  a  great  deal  of  harm  and  make  a  great  deal  of 
noise.  For  this  reason,  in  my  judgment,  a  few  troops  of  the 
United  States  should  still  be  kept  in  Georgia  for  the  present, 
for  the  purpose  of  keeping  in  restraint  these  evil-disposed 
men  to  whom  I  have  referred.  These  troops  are  further  nec 
essary  to  aid  and  assist  the  Freedmen's  Bureau,  whilst  it  re 
mains,  in  my  judgment.  And,  in  my  opinion,  it  is  proper,  at 
present,  that  that  bureau,  or  something  akin  to  it,  should  be 
continued  in  the  state  for  a  time.  In  my  judgment,  when  the! 


278  HISTORY  OF  THE  COMMITTEE  [278 

district  and  circuit  courts  of  the  United  States  are  properly 
organized  in  the  state,  and  when  our  own  legislature  shall  have 
perfected  their  system  of  laws  in  reference  to  negroes,  then 
the  bill  which  has  already  passed  one  branch  of  Congress, 
which  proposes  to  declare  and  secure  the  civil  rights  of  per 
sons,  if  passed  by  the  other  branch,  will  dispense  with  the 
necessity  of  the  presence  of  the  Freedmen's  Bureau,  or  of 
the  troops  of  the  United  States.  But  until  that  is  done,  I  think 
it  is  proper  that  both  should  be  continued. 

General  Robert  E.  Lee.1 

Question.  How  do  the  people  in  Virginia,  the  secessionists 
more  particularly,  feel  toward  the  freedmen? 

Answer.  Every  one  with  whom  I  associate  expresses  kind 
feelings  towards  the  freedmen.  They  wish  to  see  them  get  on 
in  the  world,  and  particularly  to  take  up  some  occupation  for 
a  living,  and  to  turn  their  hands  to  some  work.  I  know  that 
efforts  have  been  made  among  the  farmers,  near  where  I  live, 
to  induce  them  to  engage  for  the  year  at  regular  wages. 

Question.  Do  you  think  there  is  a  willingness  on  the  part 
of  their  old  masters  to  give  them  fair  living  wages  for  their 
labor? 

Answer.  I  believe  it  is  so.  The  farmers  generally  prefer 
those  servants  who  have  been  living  with  them  before.  I 
have  heard  them  express  their  preference  for  the  men  whom 
they  know,  who  had  lived  with  them  before  and  they  wish  to 
get  them  to  return  to  work. 

Question.  Are  you  aware  of  the  existence  of  any  combina 
tion  among  the  whites  to  keep  down  the  wages  of  the  negroes? 

Answer.  I  am  not.  I  have  heard  that,  in  several  counties, 
land  owners  had  met  in  order  to  establish  a  uniform  rate  of 
wages ;  but  I  never  heard,  nor  do  I  know,  of  any  combination 
to  keep  down  wages,  or  establish  any  rate  which  they  did  not 
think  fair.  The  means  of  paying  wages  in  Virginia  are  very 

1  Testimony,  part  ii,  p.  130- 


279]  TESTIMONY  279 

limited  now,  and  there  is  a  difference  of  opinion  as  to  how 
much  each  person  is  able  to  pay. 

Question.  How  do  they  feel  in  regard  to  the  education  of 
the  blacks  ?  Is  there  a  general  willingness  or  a  general  unwill 
ingness  to  have  them  educated  ? 

Answer.  Where  I  am,  and  have  been,  the  people  have  ex 
hibited  a  willingness  that  the  blacks  should  be  educated,  and 
they  express  an  opinion  that  that  would  be  better  for  the  blacks 
and  better  for  the  whites. 

Question.  General,  you  are  very  competent  to  judge  of  the 
capacity  of  black  men  for  acquiring  knowledge;  I  want  your 
opinion  on  that  capacity  as  compared  with  the  capacity  of 
white  men? 

Answer.  I  do  not  know  that  I  am  particularly  qualified  to 
speak  on  that  subject,  as  you  seem  to  intimate;  but  I  do  not 
think  that  he  is  as  capable  of  acquiring  knowledge  as  the  white 
man  is.  There  are  some  more  apt  than  others.  I  have  known 
some  to  acquire  knowledge  and  skill  in  their  trade  or  profes 
sion.  I  have  had  servants  of  my  own  who  learned  to  read 
and  write  very  well. 

Question.  Do  they  show  a  capacity  to  obtain  knowledge  of 
mathematics  and  the  exact  sciences  ? 

Answer.  I  have  no  knowledge  on  that  subject.  I  am  merely 
acquainted  with  those  who  have  learned  the  common  rudi 
ments  of  education. 

Question.  General,  are  you  aware  of  the  existence  among 
the  blacks  of  Virginia,  anywhere  within  the  limits  of  the  state, 
of  combinations  having  in  view  the  disturbance  of  the  peace, 
or  any  improper  and  unlawful  acts  ? 

Answer.  I  am  not.  I  have  seen  no  evidence  of  it,  and  have 
heard  of  none.  Wherever  I  have  been  they  have  been  quiet; 
and  orderly,  not  disposed  to  work  or  rather  not  disposed  to 
any  continuous  engagement  to  work,  but  just  very  short  jobs, 
to  provide  them  with  the  immediate  means  of  subsistence. 

Question.  Has  the  colored  race  generally  as  great  a  love  of 
money  and  property  as  the  white  race  possesses. 


2go  HISTORY  OF  THE  COMMITTEE  [28o 

Answer.  1  do  not  think  it  has.  The  blacks  with  whom  I 
am  acquainted  look  more  to  the  present  time  than  to  the  future. 

Question.  Does  that  absence  of  a  lust  of  money  and  prop 
erty  arise  more  from  the  nature  of  the  negro  than  from  his 
former  servile  condition? 

Answer.  Well,  it  may  be,  in  some  measure,  attributable  to 
his  former  condition.  They  are  an  amiable,  social  race.  They 
like  their  ease  and  comfort,  and,  I  think,  look  more  to  their 
present  than  to  their  future  condition. 

No  doubt  a  more  important  factor  in  determining  Con 
gress  to  provide  for  equality  in  civil  rights  was  the  black 
codes  passed  by  the  southern  legislatures  during  the  winter 
of  1865-66.  These  codes  were  not,  as  a  rule,  read  into  the 
testimony.  Alex.  H.  Stephens,  however,  offered  an  extract 
from  an  act  passed  by  the  Georgia  legislature  declaring  the 
rights  of  persons  of  color.  This  act  is  not  typical  of  the 
black  codes,  but  is  here  inserted  to  show  that  under  favor 
able  circumstances  the  southern  states  would  doubtless  have 
dealt  justly  with  the  negroes,  without  the  stimulus  of  an 
amendment  to  the  Federal  Constitution  on  civil  rights.1 

Question.  What,  at  present,  are  the  relations  subsisting  be 
tween  the  white  people  and  black  people,  especially  in  the  re 
lation  of  employer  and  employed? 

Answer.  Quite  as  good,  I  think,  as  in  any  part  of  the  world 
that  ever  I  have  been  in  between  like  classes  of  employer  and 
employee.  The  condition  of  things  in  this  respect  on  my  re 
turn  last  fall  was  very  different  from  what  it  was  when  I  left 
home  for  my  present  visit  to  this  city.  During  the  fall,  and  up 
to  the  close  of  the  year,  there  was  a  general  opinion  prevailing 
among  the  colored  people  that  at  Christmas  there  would  be  a 
division  of  the  lands,  and  a  very  general  indisposition  on  their 
part  to  make  any  contracts  at  all  for  the  present  year.  Indeed, 

1  Testimony,  part  iii,  p.  160. 


281]  TESTIMONY  2%1 

there  were  only  very  few  contracts,  I  think,  made  throughout 
the  state  until  after  Christmas,  or  about  the  first  of  January. 
General  Tillson,  who  is  at  the  head  of  the  bureau  in  the  state, 
and  whose  administration  has  given  very  general  satisfaction 
to  our  people,  I  think,  was  very  active  in  disabusing  the  minds 
of  the  colored  people  from  their  error  in  this  particular.  He 
visited  quite  a  number  of  places  in  the  state,  and  addressed 
large  audiences  of  colored  people;  and  when  they  became  satis 
fied  that  they  were  laboring  under  a  mistake  in  anticipating  3 
division  of  lands  after  Christmas  and  the  first  of  January, 
they  made  contracts  very  readily  generally ;  and  since  that  time 
affairs  have,  in  the  main,  moved  on  quite  smoothly  and  quietly. 

Question.     Are  the  negroes,  generally,  at  work? 

Answer.  Yes,  sir;  they  are  generally  at  work.  There  are 
some  idlers,  but  this  class  constitutes  but  a  small  proportion. 

Question.  What,  upon  the  whole,  has  been  their  conduct? 
Proper,  under  the  circumstances  in  which  they  have  been 
placed,  or  otherwise? 

Answer.  As  a  whole,  much  better  than  the  most  hopeful 
looked  for. 

Question.  As  far  as  you  know,  what  are  the  leading  objects 
and  desires  of  the  negro  population,  at  the  present  time,  in 
reference  to  themselves? 

Answer.  It  is  to  be  protected  in  their  rights  of  persons  and 
property — to  be  dealt  by  fairly  and  justly. 

Question.  What,  if  anything,  has  been  done  by  the  legisla 
ture  of  your  state  for  the  accomplishment  of  these  objects? 

Answer.  The  legislature  has  passed  an  act,  of  which  the 
following  is  a  copy : 

("  No.  90.) 

"  An  act  to  define  the  term  '  persons  of  color/  and  to  declare 
the  rights  of  such  persons. 

"  Sec.  i.  Be  it  enacted,  etc.,  That  all  negroes,  mulattoes,  mes 
tizoes,  and  their  descendants  having  one-eighth  negro  or  African 
blood  in  their  veins,  shall  be  known  in  this  state  as  '  persons  of 
color/ 


282  HISTORY  OF  THE  COMMITTEE  [282 

"  Sec.  2.  Be  it  further  enacted,  That  persons  of  color  shall 
have  the  right  to  make  and  enforce  contracts,  to  sue,  be  sued, 
to  be  parties  and  give  evidence,  to  inherit,  to  purchase,  and  to 
have  full  and  equal  benefit  of  all  laws  and  proceedings  for  the 
security  of  person  and  estate,  and  shall  not  be  subjected  to  any 
other  or  different  punishment,  pain,  or  penalty,  for  the  com 
mission  of  any  act  or  offence,  than  such  as  are  prescribed  for 
white  persons  committing  like  acts  or  offences." 

The  third  section  of  this  act  simply  repeals  all  conflicting 
laws.  It  was  approved  by  the  governor  on  the  i/th  of  March 
last. 

Question.  Does  this  act  express  the  opinions  of  the  people 
and  will  it  be  sustained  ? 

Answer.  I  think  it  will  be  sustained  by  the  courts,  as  well 
as  by  public  sentiment. 

The  next  matters  with  which  the  committee  concerned 
itself  were  the  questions  settled  by  section  iv  of  the  four 
teenth  amendment,  viz.,  the  guarantee  of  the  validity  of  the 
National  debt,  the  declaration  of  the  invalidity  of  the  rebel 
debt,  and  of  all  claims  for  slaves  and  damages  done  to  the 
property  of  rebels  during  the  war.  Of  fifteen  witnesses 
who  were  asked  whether  there  was  an  expectation  among 
southerners  of  compensation  for  slaves  emancipated  and 
property  destroyed  during  the  war,  twelve  replied  in  the 
affirmative,  and  three  in  the  negative.1  Twenty-eight  wit 
nesses  declared  there  was  a  general  reluctance  to  pay  taxes 
and  the  National  debt,  and  thought  that  if  it  were  paid,  the 
Confederate  debt  should  also  be  paid,  while  only  one 
thought  otherwise.2  Some  of  the  typical  answers  in  reply 
to  these  questions  follow : 

General  A.  L.  Chetlain,  of  Galena.,  Illinois,  who  had  been 
serving  in  Alabama  since  Lee's  surrender : 3 

1  Testimony,  part  iv,  p.  169.  *  Ibid.,  p.  i/5- 

8  Testimony,  part  iii,  p.  150. 


.283]  TESTIMONY  283 

Question.  Do  you  know  anything  of  the  expectations  of 
the  people  in  regard  to  payment  for  their  slaves  and  compen 
sation  for  their  losses  during  the  war  ? 

Answer.  They  talk  very  freely  in  regard  to  an  effort  being 
made  by  their  members,  when  once  in  Congress,  to  get  pay  for 
all  the  negroes  they  have  lost,  or  that  have  been  freed  under 
the  President's  proclamation.  They  also  expect  that  a  ma 
jority  in  Congress  will  be  secured,  after  the  admission  of  their 
members,  to  give  the  disabled  soldiers  of  the  South  the  benefits 
of  the  pension  act.  They  also  speak  freely  of  the  matter  of 
claims.  They  say  that,  now  that  they  are  pardoned  and  again 
in  the  family,  they  expect  the  Government  will  pay  them  for 
the  damages  which  they  sustained  by  Sherman's,  Grierson's 
and  Rousseau's  raids. 

Judge  John  C.  Underwood,  of  New  York,  whom  Lincoln 
made  federal  judge  of  the  district  court  in  Virginia : 2 

Question.  Let  me  put  a  hypothetical  case  to  you.  Suppose 
that  by  means  of  a  combination  with  the  so-called  Democratic 
party,  alias  copperhead  party,  alias  conservative  party,  they, 
the  rebels,  should  again  obtain  political  power  in  Congress,  and 
in  the  executive  department ;  suppose  this  to  be  the  result  of  a 
combination  between  the  ex-rebel  party  in  the  South  and  this 
so-called  Democratic  party  in  the  North;  what  would  be  the 
effect  of  that  ascendancy  upon  the  rebel  states?  What  meas 
ures  would  they  resort  to. 

Answer.  They  would  attempt  either  to  accomplish  a  repu 
diation  of  the  National  debt,  or  an  acknowledgment  of  the  Con 
federate  debt,  and  compensation  for  their  negroes.  I  think 
these  would  be  their  leading  measures,  their  leading  demands ; 
and  I  think  if  either  the  rebel  debt  could  be  placed  upon  an 
equality  with  the  National  debt,  or  both  could  be  alike  repu 
diated,  they  would  be  satisfied.  But  the  leading  spirits  would 
claim  compensation  for  their  negroes,  and  would  expect  to 
get  it  by  such  a  combination. 

r  Testimony,  part  ii,  p.  8. 


284  HISTORY  OF  THE  COMMITTEE  [284 

Homer  A.  Cooke,1  a  former  quartermaster  in  the  United 
States  army,  who  had  been  stationed  in  North  Carolina : 

Question.  How  do  the  ex-rebels  feel  about  the  payment  of 
the  Federal  war  debt?  If  it  was  left  to  them  to  vote  yes  or  no 
on  the  question  of  paying  it,  what  way  would  they  vote  gener 
ally? 

Answer.      They  would  vote  no,  without  doubt. 

Question.     It  would  not  be  a  very  close  struggle? 

Answer.  It  would  be  about  as  unanimous  as  the  vote  in  this 
district  on  the  question  of  negro  suffrage. 

Question.  Suppose  the  question  were  referred  to  them 
whether  or  not  they  would  pay  the  rebel  war  debt,  how  would 
they  vote  there  generally,  yes  or  no  ? 

Answer.  I  think  their  vote  would  be  in  the  affirmative,  to 
pay  it ;  because  the  mass  of  voters  are  under  the  influence  of  a 
few  men,  and  those  men  are  directly  interested  in  the  debt,  as 
they  hold  the  bonds. 

Brigadier-General  C.  H.  Howard/''  an  inspector  in  the 
Freedmen's  Bureau,  and  brother  of  Gen.  O.  O.  Howard, 
testified  as  to  conditions  in  Georgia  and  Florida : 

Question.  What  is  the  general  feeling,  according  to  your 
observation,  in  regard  to  the  payment  of  the  Confederate  rebel 
debt,  or  the  state  rebel  debt,  in  any  of  those  states ? 

Answer.  I  think  there  is  a  pretty  universal  feeling  in  favor 
of  paying  the  state  rebel  debt,  but  for  pretty  obvious  reasons 
they  would  not  be  willing  to  shoulder  any  further  the  Confed 
erate  debt. 

Question.  How  do  they  feel  in  regard  to  the  payment  of 
the  Federal  debt  for  carrying  on  the  war  ? 

Answer.  Their  feeling  is  unquestionably  opposed  to  it ;  but 
still  they  generally  expect  to  be  compelled  to  aid  in  the  pay 
ment. 

1  Testimony,  part  ii,  p.  204.  2  Testimony,  part  iii,  pp.  39,  4<>- 


285]  TESTIMONY  285 

Question.  Suppose  the  question  was  left  to  the  votes  of  the 
constituents  in  South  Carolina,  Georgia,  and  Florida.  Sup 
pose  the  electors  at  the  polls  were  voting  on  the  question  of 
paying  the  Federal  debt,  would  they  vote  for  it  ? 

Answer.     They  would  not;  I  think  not. 

Question.  Would  they  then,  knowingly  and  willingly,  elect 
representatives  to  Congress  who  would  vote  to  pay  the  Fed 
eral  debt,  supposing  that  question  should  be  made  an  issue  at 
the  polls  or  in  the  caucus  ? 

Answer.     If  that  question  were  the  main  issue? 

Question.     Suppose  it  to  be  the  sole  issue? 

Answer.  If  it  were  the  sole  issue,  I  have  no  doubt  that  the 
man  who  advocated  the  payment  of  the  Federal  debt  would 
lose  his  election.  But  there  might  be  personal  considerations 
in  favor  of  candidates  which  would  affect  that  question  very 
much.  Your  question  has  brought  to  my  mind  something 
which  has  been  quite  frequently  expressed  to  me  directly,  and 
has  been  told  to  me  by  northern  men,  as  being  found  to  be  the 
invariable  sentiment — that  the  Government  of  the  United 
States  should  take  measures  to  pay  for  the  slaves. 

Question.     Do  they  seem  to  entertain  that  expectation. 

Answer.  A  large  number  of  men  in  the  interior  seem  to 
think  that  since  the  late  indication  of  the  sentiments  of  the 
Government  (as  being  conciliatory  and  disposed  to  grant  them 
favors)  some  measure  would  be  taken  to  remunerate  them  for 
the  loss  of  their  slaves.  I  would  not  say  that  was  very  unani 
mous  or  universal,  but  I  found  that  there  were  quite  a  number1 
thinking  that  way. 

Question.  What  is  the  foundation  of  that  expectation — any 
party  combinations? 

Answer.  Not  that  I  know  of.  I  have  an  idea  that  the  ex 
pectation  would  never  have  arisen  in  the  form  of  an  expecta 
tion  but  for  a  certain  policy  which  they  think  has  been  put  in 
operation  by  the  Government.  They  regard  it  as  a  change  of 
policy  since  the  first  establishment  of  peace. 

There  was  a  feeling  among  congressmen,  that  the  leaders 


286  HISTORY  OF  THE  COMMITTEE  [2g6 

in  the  rebellion  should  be  disfranchised  or  at  least  disquali 
fied  from  holding  offices  of  trust  under  the  state  or  na 
tional  governments.  Among  the  questions  asked  the  wit 
nesses  was  one  to  bring  out  the  fact  that  the  people  of  the 
South  had  been  and  still  were  to  a  very  large  degree  under 
the  influence  of  their  leaders,  and  that  in  order  to  build  up 
there  a  loyalist  party,  it  was  necessary  to  strip  these  leaders 
of  as  much  of  their  influence  as  possible.  Forty-three  per 
sons  out  of  forty-five  gave  it  as  their  opinion  that  the  Presi 
dent's  special  pardons  and  leniency  to  these  leading  rebels 
had  had  a  very  bad  effect  upon  them  and  had  caused  them 
—humbled  and  meek  at  the  close  of  the  war — to  assume 
again  all  their  former  hauteur  and  insolence  toward  the 
North.1  Fifty  witnesses  out  of  sixty-four  believed  that 
these  leaders,  and  under  their  influence,  the  public  gener 
ally,  continued  to  hold  to  their  old  secession  principles  and 
states'  rights  doctrines;  that  they  had  submitted  to  Federal 
authority  only  under  a  feeling  of  compulsion,  and  that  in 
case  of  a  war  between  the  United  States  and  some  foreign 
power,  these  leaders  would  be  willing  to  fight  against  the 
United  States,  especially  if  they  should  see  any  chance  by 
so  doing  of  rehabilitating  the  Confederacy  and  securing 
their  independence.2  Twenty  men,  who  were  asked  if  the 
southern  politicians  did  not  hope  to  regain  the  balance  of 
power  in  the  Union  by  means  of  a  split  in  the  Union  party, 
and  by  co-operation  with  the  northern  Democrats,  replied 
unanimously  in  the  affirmative.  *  Several  other  witnesses 
declared  that  much  of  the  hostility,  so  prevalent  in  the  South 
toward  the  Union  and  Union  men,  was  studiously  engen 
dered  by  the  violent  language  used  by  politicians  and  news 
paper  editors.4 

1  Testimony,  part  iv,  pp.  175,  176. 

2  Ibid.,  pp.  176,  177.  zlbid.,  p  180. 
4  Testimony,  part  ii,  pp.  120,  121,  123. 


287]  TESTIMONY  287 

The  following  extracts  from  the  testimony  will  serve  as 
concrete  illustration  of  what  was  said  by  witnesses  in  reply 
to  questions  bearing  on  these  general  matters. 

The  indefatigable  John  Minor  Botts,1  of  Virginia,  after 
entertaining  the  committee  with  an  account  of  Lincoln's 
negotiations  with  the  Virginia  secession  convention  just 
prior  to  the  fall  of  Fort  Sumter,  was  interrogated  as  to 
the  present  feeling  of  the  ex-rebels  in  Virginia  towards  the 
United  States  Government. 

Answer.  At  the  time  of  the  surrender  of  General  Lee's 
army  and  the  restoration  of  peace  I  think  there  was,  not  only 
a  general,  but  an  almost  universal  acquiescence  and  congratu 
lation  among  the  people  that  the  war  had  terminated,  and  a 
large  majority  of  them  were  at  least  contented,  if  not  gratified, 
that  it  had  terminated  by  a  restoration  of  the  state  to  the 
Union.  At  that  time  the  leaders,  too,  seemed  to  have  been  en 
tirely  subdued.  They  had  become  satisfied  that  Mr.  Lincoln 
was  a  noble,  kind-hearted,  generous  man,  from  whom  they  had 
little  to  fear;  but  when  he  was  assassinated,  and  Mr.  Johnson 
took  his  place,  they  remembered  Mr.  Johnson's  declarations  in 
the  Senate  of  the  United  States  before  the  war,  his  own  treat 
ment  during  the  war  by  the  secession  party,  and  his  declara 
tions  after  he  came  to  Washington  as  the  Vice-President  of 
the  United  States,  in  one  or  more  speeches,  but  especially  in  a 
speech  in  which  he  declared  that  treason  was  a  crime  which 
must  be  punished.  They  felt  exceedingly  apprehensive  for  the 
security  of  their  property,  as  well  as  for  the  security  of  their 
lives ;  and  a  more  humble,  unpretending  set  of  gentlemen  I 
never  saw  than  they  were  at  that  time.  But  from  the  time 
that  Mr.  Johnson  commenced  his  indiscriminate  system  of  par 
doning  all  who  made  application,  and  from  impositions  which, 
I  have  no  doubt,  were  practiced  upon  Mr.  Johnson  in  pardon 
ing  the  worst  class  of  secessionists  among  the  first,  they  be- 

1  Testimony,  part  ii,  pp  120,  121,  123. 


288  HISTORY  OF  THE  COMMITTEE  [2g8 

came  bold,  insolent,  and  defiant;  and  this  was  increased  to  a 
very  large  extent  by  the  permission  which  was,  immediately 
after  the  evacuation  of  Richmond,  given  by  General  Patrick, 
the  Democratic  copperhead  provost  marshal  of  the  army  of 
the  Potomac,  to  the  original  conductors  of  the  public  press 
before  the  rebellion  to  re-establish  their  papers,  I  believe,  with 
out  restriction  or  limitation,  upon  any  of  the  proprietors ;  since 
which  time,  I  think,  the  spirit  of  disloyalty  and  disaffection 
has  gone  on  increasing  day  by  day,  and  hour  by  hour,  until 
among  the  leaders  generally  there  is  as  much  disaffection  and 
disloyalty  as  there  was  at  any  time  during  the  war,  and  a  hun 
dred-fold  more  than  there  was  immediately  after  the  evacua 
tion  and  the  surrender  of  the  army.  This  is  the  conclusion  to 
which  my  mind  had  been  brought  by  the  licentiousness  of  the 
press,  and  by  communications  which  are  made  to  me  from  all 
parts  of  the  state,  either  verbally  or  by  letter,  from  the  most 
prominent  and  reliable  Union  sources.  If  I  were  to  judge 
from  anything  I  have  ever  heard  personally  from  these  gen 
tlemen,  I  should  not  think  there  was  any  very  great  difference 
between  their  loyalty  and  yours  or  mine ;  but  I  hear  of  it  else 
where,  and  I  see  evidence  of  it  daily,  not  only  in  the  public 
press,  but  in  the  proceedings  of  the  so-called  legislature  of  the 
state.  It  is  no  more  a  legislative  body  than  we  compose 
one  here  now.  I  believe  if  the  leaders  and  the  public  press 
could  be  restrained  in  their  expressions  and  inculcations  of  dis 
loyalty  with  the  masses  of  the  people  we  should  have  no  trouble 
whatever. 

Lieutenant  W.  L.  Chase,  an  officer  of  the  Freedmen's 
Bureau,  stationed  in  Culpeper  county,  Virginia,  testified :  l 

Question.  In  case  of  war  between  the  United  States  and  a 
foreign  power,  what  side  would  these  men  espouse,  do  you 
think  ? 

Answer.     I  think  that  a  great  many  of  those  who  entertain 

1  Testimony,  part  ii,  p.  96. 


289]  TESTIMONY  289 

these  bitter  sentiments  would  go  with  the  foreign  country  in 
preference  to  the  United  States.  My  views  were  in  accordance 
with  those  of  Mr.  Johnson  when  I  went  there,  believing  that 
his  policy  in  reference  to  reconstruction  of  the  states  was  just; 
but  from  my  experience,  I  am  inclined  to  be  very  radical. 

Question.  What  do  you  think  has  really  been  the  effect  of 
that  liberal  policy  on  the  minds  and  hearts  of  secessionists 
there  ? 

Answer.  I  think  it  has  been  the  cause  of  their  demanding 
what  they  had  no  right  to  demand,  and  of  making  them  more 
bitter  towards  the  Government  generally,  especially  to  the  peo 
ple  of  the  north. 

Question.  Does  it  make  them  more  outspoken  and  insolent 
in  their  language  towards  the  Government  of  the  United 
States? 

Answer.  I  believe  it  does,  from  what  I  can  learn.  After 
the  fall  of  Richmond  and  the  surrender  of  Lee's  army,  people 
were  in  a  state  of  terror.  They  expected  almost  total  annihila 
tion.  They  found  out  that  nothing  of  that  kind  was  going  to 
happen ;  and  turned  right  around. 

Question.  Do  they  not  respect  the  laws  of  the  United 
States  down  there  ? 

Answer.     They  do  not  like  to  if  they  can  avoid  it. 

J.  W.  Alvord,  an  agent  of  the  Freedmen's  Bureau,  testi 
fied  in  regard  to  his  experience  in  Virginia  and  other  south 
ern  states.1 

Question.  Now  state  what,  among  the  rebel  people,  is  the 
general  feeling  towards  the  Government  of  the  United  States  ? 

Answer.  It  is  hostile,  as  it  seems  to  me,  in  the  great  ma 
jority  of  the  southern  people;  I  mean  that  part  of  them  who 
were  engaged  in  the  rebellion.  There  is  evidently  no  regret  for 
the  rebellion,  but  rather  a  defence  of  it,  and  only  a  submission 
to  the  circumstances  of  the  case  as  a  conquered  people.  They 

1  Testimony,  part  ii,  p.  243. 


290  HISTORY  OF  THE  COMMITTEE  [290 

everywhere  defend  the  principles  on  which  the  rebellion  was 
commenced. 

Question.     They  still  insist  that  those  principles  were  right  ? 

Answer.  Yes,  sir ;  they  seem  to  feel  that  peace  was  brought 
about  by  an  arrangement  which  allowed  them  the  equal  condi 
tion  of  belligerents,  and  in  possession  of  all  that  they  previously 
had  had  of  government  privileges.  They  everywhere  insist 
upon  the  immediate  restoration  of  such  privileges,  and  that 
they  shall  be  readmitted  as  states  into  the  Union.  They  com 
plain  bitterly  of  the  treatment  they  are  receiving  in  being  kept 
out. 

Sufficient  evidence  has  now  been  quoted  to  show  that  the 
motive  actuating  the  members  of  the  committee  was  as 
stated  above,  to  fortify  their  preconceived  opinions  in  re 
gard  to  the  following  matters:  First,  that  an  amendment 
to  the  Constitution  was  necessary  to  give  the  negroes  equal 
civil  rights,  it  being  shown  that  without  such  an  amendment 
the  lives,  liberty,  and  property  of  the  freedmen  would  not 
be  protected  or  respected.  Second,  another  amendment 
that  would  guarantee  the  validity  of  the  National  debt,  re 
pudiate  the  rebel  debt  and  claims  for  slaves  emancipated 
and  property  destroyed.  Third,  an  amendment  that  would 
either  disfranchise  for  a  time  the  whole  rebel  population, 
or  at  least  disqualify  the  leaders  of  the  rebellion  from  hold 
ing  any  office  of  trust  or  emolument  under  the  national  or 
state  governments.  In  addition  to  these  it  followed  that, 
since  almost  the  entire  white  population  of  the  South  was 
disloyal,  still  another  amendment  was  necessary  to  readjust 
the  basis  of  representation  in  such  a  way  as  to  give  to  that 
section  as  little  power  as  possible  in  the  National  Congress 
and  in  the  electoral  college.  Some  members  of  the  com 
mittee,  especially  Boutwell,  Stevens,  and  Washburne,  were 
anxious  to  substitute  for  this  last  proposition  one  that 
would  give  the  suffrage  to  all  the  negroes,  which  together 


291]  TESTIMONY  291 

with  a  wholesale  disfranchisement  of  the  rebels,  would  in 
sure  the  election  of  loyal  members  of  Congress  from  the 
southern  states.  The  testimony  certainly  proved  that  the 
negroes  were  almost  the  only  loyal  element  in  the  South, 
and  could  be  depended  upon,  under  proper  tutelage  and  in 
fluence,  to  vote  "  right,"  but  the  more  timorous  members 
of  the  committee  were  afraid  at  that  time  to  take  so  bold  a 
step,  especially  as  in  most  of  the  northern  states  the  colored 
people  did  not  enjoy  the  right  of  suffrage;  and  propositions 
to  admit  them  to  the  franchise  were  not  popular. 

Thus  fortified  in  their  opinions  by  the  evidence  as  to  what 
measures  they  should  recommend  to  Congress  in  order  to 
secure  "  the  fruits  of  the  war,"  the  committee  wras  now 
ready  to  put  them  into  proper  language  as  resolutions  of 
amendment  to  the  Constitution.  How  these  various  propo 
sitions  were  combined  into  one  resolution  and  became  a  part 
of  the  Constitution  as  the  fourteenth  amendment  will  form 
the  subject-matter  of  the  next  chapter. 


CHAPTER  VI 
THE  FOURTEENTH  AMENDMENT 

CONGRESS  having  refused  to  adopt  the  President's  recon 
struction  policy  and  having  failed  to  compromise  with  him, 
was  now  under  the  necessity  of  formulating  a  policy  of  its 
own.  It  had  long  been  criticized  for  rejecting  the  policy  of 
the  President,  and  at  the  same  time  proposing  no  plan  of 
its  own.  This  criticism  at  first  was  made  only  by  the  op 
ponents  of  Congress,  but  when  it  became  evident  to  all  that 
harmony  of  action  between  the  executive  and  legislative 
branches  of  the  Government  was  impossible,  supporters  of 
the  latter  began  to  grow  impatient  because  it  did  not  offer 
some  alternative  method  of  its  own  for  restoring  the  rebel 
states.  Radicals,  both  inside  and  outside  of  Congress, 
began  to  fear  that  unless  the  various  differences  among  the 
Republican  members  were  harmonized  and  some  common 
policy  agreed  upon,  that  of  the  President  would  inevitably 
become  permanent  for  sheer  want  of  a  substitute.  Radical 
newspapers  and  journals  were  especially  urgent  that  a  plan 
counter  to  the  President's  be  evolved  and  immediately  an 
nounced  by  Congress. 

The  Nation  in  an  editorial  on  April  2Oth,  gave  expression 
to  this  demand.  It  declared : 

The  people  are  willing  to  keep  the  southern  states  out  of  the 
Union  until  certain  conditions  are  complied  with,  but  they 
want  to  know  what  those  conditions  are  going  to  be.  Congress 
has  agreed  upon  none.  The  only  thing  Congress  has  agreed 
on  is  keeping  the  southern  states  out  for  the  present,  but  this 
292  [292 


293]  THE  FOURTEENTH  AMENDMENT  293 

is  simply  the  excavation  for  the  foundation  for  the  new  build 
ing.  The  public  is  anxiously  waiting  to  see  the  structure  rise 
and  is  tired  of  hearing  the  builders  wrangle  over  the  style  of 
architecture.  More  serious  work  than  we  have  yet  had  must 
now  begin.  If  it  does  not — if  a  greater  willingness  is  not  dis 
played  by  individuals  to  serve  in  the  more  obscure  positions 
and  to  unite  on  some  comprehensive  plan — we  greatly  fear 
that  the  coming  fall  will  find  the  public  thoroughly  out  of 
patience  with  Congress  and  quite  ready  to  let  the  President  and 
his  friends  have  their  own  way. 

The  New  York  Tribune,  after  the  veto  of  the  Civil  Rights 
bill,  became  daily  more  and  more  insistent  that  Congress 
adopt  a  policy  of  its  own,  and  towards  the  middle  of  April 
made  one  of  its  characteristically  frantic  appeals  to  Con 
gress  for  immediate  and  comprehensive  action.  It  sug 
gested  that  the  Stewart  resolutions  might  be  a  good  basis  to 
begin  on.1 

These  resolutions  had  been  somewhat  modified  since  they 
were  first  introduced  on  March  i6th.2  On  April  4th,  Stew 
art  had  again  brought  them  forward,  with  only  a  few 
slight  verbal  changes.3  He  urged  that  now  since  Congress 
had  definitely  rejected  the  policy  of  the  President  it  must 
enunciate  one  of  its  own.  The  outside  world  was  saying 
that  Congress  did  not  intend  to  adopt  any  policy  whatever ; 
that  there  was  no  sincerity  on  its  part;  that  the  only  object 
it  had  in  pretending  to  favor  restoration  was  to  use  sena 
tors  and  representatives  for  other  purposes.  Isolated  propo- 

1  N.  Y.  Tribune,  April  21,  1866. 

2  See  supra,  ch.  iv,  p.  253. 

3  Globe,  pp.  1753,  1754.    Though  Stewart  voted  to  sustain  the  veto 
of  the  Freedmen's  Bureau  bill,  he  says  he  did  so  only  because  the 
President  agreed  to  sign  the  Civil  Rights  bill.    When  Johnson  failed 
to  keep  his  agreement  Stewart  became  one  of  his  most  bitter  enemies. 
Reminiscences,  pp.  197-201. 


294  HISTORY  OF  THE  COMMITTEE  [394 

sitions  for  amending  the  Constitution  would  no  longer  an 
swer  the  demands  of  the  situation.  Whatever  plan  might 
be  adopted  must  cover  the  whole  subject  and  operate  as  a 
permanent  settlement  of  the  reconstruction  question.  He 
respectfully  submitted  his  resolutions,  no  longer  as  a  com 
promise,  but  as  such  a  distinct  and  comprehensive  congres 
sional  plan  as  he  thought  the  occasion  demanded.  He 
hoped  for  their  immediate  consideration  and  adoption,  and 
moved  to  take  them  out  of  the  hands  of  the  joint  committee 
and  make  them  the  special  order  for  the  next  day,  but  the 
Senate  did  not  accept  his  suggestion. 

'On  April  I2th,  Stewart  introduced  a  resolution  for 
amending  the  Constitution.1  It  consisted  of  two  sections; 
the  first  provided  for  impartial  suffrage,  and  equality  in  civil 
rights,  and  the  second  declared  invalid  claims  for  slaves 
emancipated.  This  was  accompanied  by  a  simple  legisla 
tive  resolution  which  declared,  that  "  whenever  any  one  of 
the  eleven  states  shall  have  ratified  the  foregoing  amend 
ment,  then  such  state  shall  be  recognized  as  having  resumed 
its  former  relations  with  this  Government,  and  a  general 
amnesty  shall  exist  in  regard  to  all  persons  in  such  state 
who  were  in  any  way  connected  with  the  late  insurrection." 

On  April  i6th,  when  the  committee  for  the  first  time  met 
with  the  definite  purpose  of  evolving  a  distinct  congres 
sional  plan  of  reconstruction,  Stewart  was  invited  to  meet 
with  them  and  discuss  his  proposition.:;/  At  this  meeting, 
he  no  doubt  urged  the  same  considerations  which  he  had 
previously  brought  to  the  support  of  his  proposition  in  the 
Senate.3  While  he  and  some  others  continued  to  insist  that 
it  be  made  the  basis  of  congressional  action,  it  is  not  sur 
prising  that  he  failed  to  have  it  adopted.  For  in  the  end 

1  Globe,  p.  1906.  2  See  supra,  p.  82. 

'A  See  supra,  p.  254. 


295]  THE  FO^RTEENTH  AMENDMENT  29$ 

the  determination  of  the  congressional  plan  of  reconstruc 
tion  was  not  left  to  the  most  able  and  statesmanlike  con 
gressmen,  but  to  mere  politicians  who  acted  almost  entirely 
from  motives  of  party  advantage.  It  is  true  Stewart's  plan 
contemplated  giving  the  negroes  the  vote,  but  it  also  gave 
to  the  whites  amnesty.  The  radicals  correctly  reckoned 
that  the  dominant  race,  by  imposing  educational  and  prop 
erty  qualifications  for  voting,  would  disfranchise  a  sufficient 
number  of  negroes  to  retain  control  of  the  southern  state 
governments  and  obtain  a  greater  proportion  of  power  in 
the  National  Government  than  it  had  ever  before  possessed. 
To  the  minds  of  the  radicals,  good  party  men  as  they  were, 
nothing  could  be  more  offensive.  According  to  their  ideas, 
if  the  rebels  were  to  control  in  the  South,  southern  influence 
in  the  National  Government  should  be  reduced  to  a  minimum ; 
if  negro  suffrage  were  granted  and  representation  allowed  to 
remain  according  to  population,  reconstruction  should  be  so 
ordered  that  the  "  party  of  the  Union  "  might  at  least  divide 
with  the  Democrats  the  delegations  from  the  southern  states 
in  Congress  and  the  electoral  college.  In  other  words,  the 
proposition  for  negro  suffrage  reduced  itself  to  this :  though 
admirable  in  theory,  its  practical  application  would  be  bane 
ful  if  the  political  benefits  from  it  were  to  accrue  to  the 
hated  rebels  and  despised  copperheads;  on  the  other  hand, 
it  would  be  not  only  admirable  in  theory  but  excellent  in 
practice  should  it  result  in  placing  loyal  Unionists  in  control 
of  the  ex-rebel  states.  But  at  that  time  the  radicals  dared 
not  enact  so  "  thorough  "  a  reconstruction  measure  as  would 
accomplish  this  desirable  result.  Therefore,  since  the  Stew 
art  plan  would  neither  diminish  the  number  of  southern 
/representatives  nor  give  any  considerable  portion  of  them 
to  the  radicals,  it  was  worthless  as  a  partisan  measure  and 
hence  was  rejected.^ 

The  next  proposition  considered  by  the  committee  also 


296  HISTORY  OF  THE  COMMITTEE  [2$6 

came  from  an  outsider,  Robert  Dale  Owen.  Owen  was  the 
son  of  Robert  Owen,  one  of  the  great  English  radicals  of 
the  second  quarter  of  the  I9th  century.  Robert  Dale  Owen 
was  hardly  less  known  than  his  father  as  a  reformer  and 
humanitarian.  He  had  come  to  America  only  a  few  years 
before  the  outbreak  of  the  Civil  War,  and  quite  naturally 
had  interested  himself  in  the  slavery  question,  and  after 
the  war,  in  the  general  welfare  and  future  development  of 
the  negro  race.  Fortunately,  he  has  left  an  account  of  how 
he  came  to  propose  a  plan  of  reconstruction,  how  it  was  en 
dorsed  by  Thaddeus  Stevens,  how  it  was  first  adopted  by  the 
committee,  and  why  it  was  finally  rejected.1 
The  proposition  follows : 

A  joint  resolution  proposing  an  amendment  to  the  Constitu 
tion,  and  to  provide  for  the  restoration  to  the  states  lately  in 
insurrection  of  their  full  political  rights. 

Whereas  it  is  expedient  that  the  states  lately  in  insurrection^ 
should,  at  the  earliest  day  consistent  with  the  future  peace  and 
safety  of  the  Union  be  restored  to  full  participation  in  all 
political  rights. 

Therefore,  be  it  resolved  by  the  Senate  and  House  of  Rep 
resentatives  of  the  United  States  of  America  in  Congress  as 
sembled  (two-thirds  of  both  Houses  concurring),  that  the  fol 
lowing  article  be  proposed  to  the  legislatures  of  the  several 
states  as  an  amendment  to  the  Constitution  of  the  United 
States,  which,  when  ratified,  by  three-fourths  of  said  legisla 
tures,  shall  be  valid  as  part  of  the  Constitution,  namely : 

Article— 

^  Section  i.  No  discrimination  shall  be  made  by  any  state, 
nor  by  the  United  States,  as  to  the  civil  rights  of  persons  be 
cause  of  race,  color,  or  previous  condition  of  servitude. 

1  Owen's  account  may  be  found  in  the  Atlantic  Monthly  for  June, 

^1875,    under    the    caption,    "  Political    Results    from    the    Varioloid." 

For  the  action  of  the  committee  on  Owen's  plan,  see  supra,  pp.  83  et  seq. 


297]  THE  FOURTEENTH  AMENDMENT  097 

Sec.  2.  From  and  after  the  fourth  day  of  July,  in  the  year 
one  thousand  eight  hundred  and  seventy-six,  no  discrimination 
shall  be  made  by  any  state  nor  by  the  United  States,  as  to  the 
enjoyment  by  classes  of  persons  of  the  right  of  suffrage,  be 
cause  of  race,  color  or  previous  condition  of  servitude. 

Sec.  3.  Until  the  fourth  day  of  July,  one  thousand  eight 
hundred  and  seventy-six,  no  class  of  persons,  as  to  the  right 
of  any  of  whom  to  suffrage  discrimination  shall  be  made  by 
any  state,  because  of  race,  color,  or  previous  condition  of  ser 
vitude,  shall  be  included  in  the  basis  of  representation. 

Sec.  4.  Debts  incurred  in  aid  of  insurrection  or  of  war 
against  the  Union,  and  claims  of  compensation  for  loss  of  in 
voluntary  service  or  labor,  shall  not  be  paid  by  any  state  nor 
by  the  United  States. 

Sec.  5-  Congress  shall  have  power  to  enforce  by  appropriate 
legislation,  the  provisions  of  this  article. 

And  be  it  further  resolved,  that  whenever  the  above  recited 
amendment  shall  have  become  part  of  the  Constitution,  and 
any  state  lately  in  insurrection  shall  have  ratified  the  same,  and? 
shall  have  modified  its  constitution  and  laws  in  conformity 
with  the  first  section  thereof,  the  senators  and  representatives 
from  such  state,  if  found  duly  elected  and  qualified,  shall,  after 
having  taken  the  usual  oath  of  office,  be  admitted  as  such : 

Provided,  That  no  person  who,  having  been  an  officer  in  the 
army  or  navy  of  the  United  States,  or  having  been  a  member 
of  the  Thirty-sixth  Congress,  or  of  the  Cabinet  in  the  year  one 
thousand  eight  hundred  and  sixty,  took  part  in  the  late  insur 
rection,  shall  be  eligible  to  either  branch  of  the  National  legis 
lature  until  after  the  fourth  day  of  July,  one  thousand 
eight  hundred  and  seventy-six. 

It  seems  fitting  that  Owen  should  tell  his  own  story  of 
his  relations  with  the  committee  and  the  fate  of  his  propo 
sition.1 

^•Atlantic  Monthly,  June,  1875:  "Political  Results  from  the 
Varioloid." 


298  HISTORY  OF  THE  COMMITTEE  [298 

Throughout  the  winter  of  1865-66  I  had  watched,  with  anx 
ious  interest  and  with  some  misgivings,  the  doings  of  Congress 
and  of  her  reconstruction  committee.  .  .  . 

Toward  the  close  of  March — the  committee  still  inactive — I 
became,  to  borrow  the  Quaker  term,  greatly  "  exercised  "  in 
regard  to  this  matter;  and  I  visited  Washington,  resolved  to 
do  what  in  me  lay  toward  the  judicious  settlement  of  so  vital 
a  question ;  not  concealing  from  myself,  however,  that  an  out 
sider,  intermeddling  in  congressional  action,  must  make  up  his 
mind  to  encounter,  from  members,  a  certain  amount  of  impa 
tient  opposition. 

After  sounding  several  of  my  personal  acquaintances  in  the 
House  and  Senate,  also  Governor  Morton  (not  yet  senator),  I 
called,  early  one  morning,  on  my  friend  Thad.  Stevens  (as  we 
were  wont  to  call  him),  then  chairman,  on  the  part  of  the 
House,  of  the  reconstruction  committee  and  read  to  him  the 
following:  [Then  follows  Owen's  proposed  amendment:  see 
supra,  p.  83.] 

"  Read  that  to  me  again,"  said  Stevens,  when  I  had  con 
cluded. 

I  did  so,  and  inquired  if  he  had  an  hour  to  spare. 

"  I  have  nothing  half  so  important  to  do  as  to  attend  to  this. 
Take  your  own  time." 

Then  I  set  before  him,  succinctly,  the  chief  reasons  for  the 
policy  embodied  in  my  amendment.  "  The  freedmen,"  I  said, 
"  ought  to  be  regarded  as  the  wards  of  the  Federal  Gov 
ernment." 

Stevens — Our  very  first  duty  is  to  them.  Let  the  cursed 
rebels  lie  on  the  bed  they  have  made. 

Myself — But  we  cannot  separate  the  interests  and  the  fate 
of  the  negro  from  those  of  the  planter.  If  we  chafe  and  sour 
the  whites  of  the  South,  the  blacks  must  necessarily  suffer 
thereby. 

Stevens — Is  that  your  reason  for  proposing  prospective  suf 
frage? 

Myself— Not  the  chief  reason.  The  fact  that  the  negro  is, 
for  the  present,  unprepared  wisely  to  use  the  right  of  suffrage, 


299]  THE  FOURTEENTH  AMENDMENT  299 

and,  still  more,  incapable  of  legislating  with  prudence,  is  not 
less  a  fact  because  it  has  occurred  through  no  fault  of  his.  We 
must  think  and  act  for  him  as  he  is,  and  not  as,  but  for  life 
long  servitude,  he  would  have  been.  We  seclude  minors  f  rom. 
political  rights,  not  because  they  are  unworthy,  but  because, 
for  the  time,  they  are  incapable.  So  of  foreigners;  we  grant 
them  the  privileges  of  citizenship  only  after  five  years'  proba 
tion. 

Stevens — I  hate  to  delay  full  justice  so  long. 

Myself — Consider  if  it  be  not  for  the  freedman's  welfare 
and  good  name  that  he  should  be  kept  away  from  the  duties 
and  responsibilities  of  political  life  until  he  shall  have  been,  in 
a  measure,  prepared  to  fulfill  these  with  credit  to  himself  and 
advantage  to  the  public  service.  He  thirsts  after  education,  and 
will  have  it  if  we  but  give  him  a  chance,  and  if  we  don't  call 
him  away  from  the  schoolroom  to  take  a  seat  which  he  is  un 
fitted  to  fill  in  a  legislative  chamber.  If  he  occupies  such  a 
seat  prematurely — perhaps  before  he  can  read  a  word  of  the 
Constitution — and  becomes  a  nuisance  or  a  laughing-stock, 
we,  in  case  we  mismanage  our  African  wards,  ought  to  bear 
the  blame. 

Stevens — You  seem  to  take  it  for  granted  that  as  soon  as  the) 
negro  is  admitted  to  political  rights,  he  will  set  up  as  legis 
lator. 

Myself — In  South  Carolina  and  Mississippi  the  blacks  out 
number  the  whites;  and  in  Louisiana,  Alabama,  Georgia,  and 
Florida,  the  numbers  approach  equality.  The  negro  can  count, 
if  only  on  his  fingers ;  and  knows  well  enough  when  he  has  the 
power.  Are  we  reasonable  if  we  expect  from  uncultured 
freedmen  self-restraint  and  abnegation  of  political  aspirings 
which  we  never  find  among  ourselves  ? 

Stevens — If  the  negroes  don't  rule,  impenitent  traitors  will. 
Isn't  that  as  bad? 

Myself — I  think  not ;  and  if  either  are  to  make  a  mess  of  it 
and  lose  character,  I'd  rather  it  should  be  the  planter. 

Stevens — But  if  they  dictate  the  laws,  what  security  have 
the  freedmen  against  outrage  and  virtual  return  to  slavery. 


300  HISTORY  OF  THE  COMMITTEE  [300 

Myself — This.  We  shall  have  invested  them,  beyond  repeal 
by  law,  with  political  rights,  if  it  be  prospectively  only;  and 
their  former  masters  will  feel  that  they  have  now  to  deal  with 
men  who,  in  a  few  years,  will  be  able  to  control  elections,  make 
governors  and  congressmen,  and  confer  office  on  whom  they 
please. 

Stevens  picked  up  my  manuscript,  looked  it  carefully  over, 
and  then,  in  his  impulsive  way,  said :  '"'  I'll  be  plain  with  you, 
Owen.  We've  had  nothing  before  us  that  comes  anywhere 
near  being  as  good  as  this,  or  as  complete.  It  would  be  likely 
to  pass,  too ;  that's  the  best  of  it.  We  haven't  a  majority,  either 
in  our  committee  or  in  Congress,  for  immediate  suffrage ;  and 
I  don't  believe  the  states  have  yet  advanced  so  far  that  they 
would  be  willing  to  ratify  it.  I'll  lay  that  amendment  of  yours 
before  our  committee  to-morrow,  if  you  say  so ;  and  I'll  do  itiy 
best  to  put  it  through." 

I  thanked  him  cordially,  but  suggested  that,  before  he  did 
so,  it  would  perhaps  be  well  that  I  should  see  Senator  Fessen- 
den  and  other  prominent  members  of  the  reconstruction  com 
mittee  on  the  subject;  to  which  he  assented. 

Then  I  laid  before  him,  as  supplement  to  my  article  xiv, 
a  draft  of  a  joint  resolution  to  amend  the  Constitution,  and  to 
provide  for  the  restoration  to  the  states  lately  in  insurrection 
of  their  full  political  rights.  [Here  follows  Owen's  resolution 
for  restoring  the  southern  states.  See  supra,  p.  84.] 

Stevens  flared  up  at  this.  '  That  will  never  do !  Far  too 
lenient.  It  would  be  dangerous  to  let  these  fellows  off  on  such 
terms." 

I  reminded  him  that  if  the  ex-rebel  states  (as  they  surely 
would)  postponed  negro  suffrage  till  1876,  then,  according  to 
the  third  section  of  my  article,  instead  of  sixty-six  representa 
tives  in  Congress  (as  under  the  apportionment  then  in  force), 
they  would  be  entitled  under  a  purely  white  basis  of  represen 
tation,  to  forty-two  representatives  only.  "  Surely,"  said  I, 
"  you  can  manage  that  number,  even  if  they  should  happen  to 
be  ultra  secessionists." 

"  Perhaps  we   could,"   replied   Stevens.     "  But  you   forget 


30l]  THE  FOURTEENTH  AMENDMENT  301 

the  Senate.  The  eleven  insurrectionary  states  would  be  en 
titled  to  their  twenty-two  senators,  suffrage  or  no  suffrage." 

I  admitted  the  force  of  this ;  and  I  failed  to  bring  him  over 
to  my  views  of  a  clement  policy.  He  had  been  terribly  stirred 
up,  like  so  many  others,  by  the  assassination  of  Lincoln,  and 
he  was  ruled  by  an  embittered  feeling  toward  the  South. 

I  found  Senator  Fessenden,  who  was  chairman  of  the  recon 
struction  committee  on  the  part  of  the  Senate,  the  very  reverse 
of  Stevens.  Cold,  deliberate,  dispassionate,  cautious,  he 
heard  me  patiently,  but  with  scarcely  a  remark.  At  the  close, 
while  assenting  to  the  importance  of  the  subject,  he  withheld 
any  opinion  as  to  my  amendment ;  asked  me  to  leave  the  mamn 
script  with  him,  said  he  would  give  it  careful  attention  and 
would  be  glad  to  see  me  again.  When,  two  days  later,  I  called 
upon  him,  he  told  me,  in  guarded  and  general  terms,  that  he 
thought  well  of  my  proposal,  as  the  best  that  had  yet  been  pre 
sented  to  their  committee.  Washburne  (E.  B.)  agreed  to  my 
amendment,  with  some  enthusiasm.  Conkling  approved  it. 
So,  strongly,  did  Senator  Howard.  So,  in  a  general  way,  did 
Boutwell.  So,  qualifiedly,  did  Bingham,  observing,  however, 
that  he  thought  the  first  section  ought  to  specify,  in  detail,  the 
civil  rights  which  we  proposed  to  assure;  he  had  a  favorite 
section  of  his  own  on  that  subject.  All  the  Republican  mem 
bers  of  the  committee  received  the  proposal  more  or  less  favor 
ably.  The  Democrats  held  back. 

Owen  then  goes  on  to  tell  how  his  plan  was  adopted  by 
the  committee  and  ordered  to  be  reported  to  Congress.1  Out 
of  courtesy  for  Fessenden,  however,  who  was  sick  of  the 
varioloid,  the  report  was  held  back  for  a  couple  of  days  in 
order  that  he,  the  chairman,  should  have  a  part  in  making 
the  most  important  report  of  the  session.2 

Stevens'  recital  to  Owen  of  the  reasons  why  the  com- 

1  Cf.  supra,  p.  99. 

2  See  supra,  p.  100.     This  was  the  reason  for  Williams'  motion. 


302  HISTORY  OF  THE  COMMITTEE  [302 

mittee  abandoned  his  plan  shows  the  extent  to  which  politi 
cal  expediency  had  weight  in  the  formulation  of  the  con 
gressional  plan  of  reconstruction. 

"Our  action  on  your  amendment"  [said  Stevens]  "  had,  it 
seems,  got  noised  abroad.  In  the  course  of  last  week  the  mem 
bers  from  New  York,  from  Illinois,  and  from  your  state  too, 
Owen — from  Indiana — held,  each  separately,  a  caucus  to  con 
sider  whether  equality  of  suffrage,  present  or  prospective, 
ought  to  form  a  part  of  the  Republican  programme  for  the 
coming  canvas.  They  were  afraid,  so  some  of  them  told  me, 
that  if  there  was  "  a  nigger  in  the  wood-pile  "  at  all,  (that  was 
the  phrase) ,  it  would  be  used  against  them  as  an  electioneering 
handle,  and  some  of  them — hang  their  cowardice  ! — might  lose 
their  elections.  By  inconsiderable  majorities  each  of  these 
caucuses  decided  that  negro  suffrage,  in  any  shape,  ought  to  be 
excluded  from  the  platform ;  and  they  communicated  these  de 
cisions  to  us.  Our  committee  hadn't  backbone  enough  to  main 
tain  its  ground.  Yesterday,  the  vote  on  your  plan  was  recon 
sidered,  your  amendment  was  laid  on  the  table,  and  in  the 
course  of  the  next  three  hours  we  contrived  to  patch  together 
— well,  what  you've  read  this  morning." 

I  was  silent,  thinking  to  myself  how  often  in  this  riddle  of 
a  world,  results  of  the  most  momentous  import  turn  on  what 
seem  to  us  the  veriest  trifles.  But,  mortified  as  I  was,  I  could 
not  help  smiling  when  Stevens,  after  his  characteristic  fashion, 
burst  forth,  "  Damn  the  varioloid!  It  changed  the  whole  pol 
icy  of  the  country." 

One  should  be  on  his  guard  against  taking  too  seriously 
Owen's  feeling  that  Stevens  committed  himself  almost 
wholly  to  his  plan  of  reconstruction.  As  a  matter  of  fact, 
he  accepted  only  the  Owen  amendment  and  advocated  a 
much  more  stringent  bill  than  Owen's  for  disfranchising  the 
rebels  and  for  restoring  the  southern  states.1  Stevens  cer- 

1  See  supra,  pp.  116,  119. 


303]  THE  FOURTEENTH  AMENDMENT 

tainly  cared  but  little  for  the  fourteenth  amendment  as  actu 
ally  adopted  and  never  intended  that  it  should  serve  as  a 
permanent  settlement  of  the  reconstruction  question.  No 
doubt  the  Owen  plan  was  much  more  pleasing  to  him  as  a 
final  adjustment  than  what  the  committee  actually  re 
ported.  To  Stevens,  however,  this  final  report  was  to  serve 
merely  as  a  party  platform,  and  as  such,  he  gave  it  his  cor 
dial  support. 

Owen's  proposition  is  the  forbear  of  the  present  four 
teenth  amendment,  but  after  the  members  of  the  committee 
decided  to  dodge  the  issue  of  negro  suffrage,  they  changed 
it  in  many  particulars  at  their  meeting  on  April  28th,1  and  it 
is  hardly  recognizable  in  the  proposition  which  they  finally 
adopted,  and  reported  to  the  House  and  Senate  on  April 
30th.2  This  proposition  read  as  follows : 


/A  joii 
tution  o: 


joint  resolution  proposing  an  amendment  to  the  Consti- 
of  the  United  States. 

Be  it  resolved  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled  (two- 
thirds  of  both  Houses  concurring)  that  the  following  article 
be  proposed  to  the  legislatures  of  the  several  states  as  an 
amendment  to  the  Constitution  of  the  United  States,  which, 
when  ratified  by  three-fourths  of  said  legislatures,  shall  be 
valid  as  part  of  the  Constitution,  namely:  ) 

Sec.  i.  No  state  shall  make  or  enforce' any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States ;  nor  shall  any  state  deprive  any  person  of  life,  liberty  or 
property  without  due  process  of  law ;  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws. 

Sec.  2.  Representatives  shall  be  apportioned  among  the  sev 
eral  states  which  may  be  included  within  this  Union  accord 
ing  to  their  respective  numbers,  counting  the  whole  number  of 

1  See  supra,  pp.  100  et  seq. 
1  Globe,  pp.  2286-7,  2265. 


304  HISTORY  OF  THE  COMMITTEE  [304 

persons  in  each  state,  excluding  Indians  not  taxed.  But  when 
ever  in  any  state  the  elective  franchise  shall  be  denied  to  any 
portion  of  its  male  citizens  not  less  than  twenty-one  years  of 
age,  or  in  any  way  abridged,  except  for  participation  in  re 
bellion  or  other  crime,  the  basis  of  representation  in  such 
state  shall  be  reduced  in  the  proportion  which  the  number  of 
male  citizens  shall  bear  to  the  whole  number  of  such  male  citi 
zens  not  less  than  twenty-one  years  of  age. 

Sec.  3.  Until  the  4th  day  of  July,  in  the  year  1870,  all  per 
sons  who  voluntarily  adhered  to  the  late  insurrection,  giving 
it  aid  and  comfort,  shall  be  excluded  from  the  right  to  vote 
for  representatives  in  Congress  and  for  electors  for  President 
and  Vice-President  of  the  United  States. 

Sec.  4.  Neither  the  United  States  nor  any  state  shall  assume 
or  pay  any  debt  or  obligation  already  incurred,  or  which  may 
hereafter  be  incurred,  in  aid  of  insurrection  or  of  war  against 
the  United  States,  or  any  claim  for  compensation  for  loss  of 
involuntary  service  or  labor. 

Sec.  5.  The  Congress  shall  have  power  to  enforce  by  appro 
priate  legislation  the  provisions  of  this  article. 

At  the  same  time  the  committee  adopted  and  reported 
two  bills :  one  to  provide  for  restoring  to  the  states  lately  an 
rebellion  their  full  political  rights,  the  other  declaring  the 
leading  rebels  ineligible  to  office  under  the  Government  of 
the  United  States.1 

On  May  8th,  Stevens  opened  the  debate  on  the  resolution 
for  amending  the  Constitution.2  In  epitome  his  speech  was 
as  follows:  The  proposition  was  not  all  the  committee 
desired  and  it  fell  far  short  of  his  individual  wishes.  How 
ever,  nearly  everybody  on  the  committee  believed  it  was  all 
that  could  be  obtained  at  the  present  time.  To  him  it  was 
a  matter  of  great  regret  that  the  first  amendment  on  the 

1  For  the  disposition  made  of  these  bills  see  infra,  ch.  vii. 
8  Globe,  pp.  2459-60. 


305]  THE  FOURTEENTH  AMENDMENT  305 

basis  of  representation  had  been  slaughtered  in  the  "  house 
of  its  friends  by  a  puerile,  pedantic  criticism  and  by  a  per 
version  of  philological  definition."  x  The  section  of  this 
amendment  on  that  question  was  not  so  good  as  that,  but 
was  at  least  a  step  in  the  right  direction. 

Section  i  simply  meant  that  whatever  law  punishes  or 
protects  a  white  man  should  operate  in  the  same  way  upon 
the  black  man.     This  would  abolish  the  existing  discrimi 
nations  in  all  those  states  where  there  were  black  codes.    It       / 
was  true  that  this  end  was  already  accomplished  by  the  Civil  / 
Rights  act,  but  he  feared  that  so  soon  as  the  Democrats; 
should  again  obtain  control  of  Congress,  they  would  repeal  [ 
that  law ;  hence  the  necessity  for  this  civil  rights  section  of  | 
the  amendments 

Section  3,  the  penal  section,  was  the  most  important  of 
all,  its  only  drawback  being  its  extreme  leniency.  It  should 
prove  the  most  popular  among  the  people  as  it  prohibited 
the  rebels  from  voting  until  after  1870.  This  was  the  mild 
est  of  all  punishments  ever  inflicted  upon  traitors.  "  I 
might  not  consent  to  the  extreme  severity  denounced  upon 
them  by  a  provisional  governor  of  Tennessee — I  mean  the 
late  lamented  Andrew  Johnson  of  blessed  memory — but  I 
would  have  increased  the  severity  of  this  section."  Of  the 
fourth  section,  Stevens  said,  "  None  dare  object  to  it,  who 
is  not  himself  a  rebel." 

In  a  brief  peroration  he  requested  every  friend  of  jus 
tice,  every  friend  of  the  Union,  and  every  friend  of  the 
final  triumph  of  the  rights  of  man  and  their  extension  to 
every  human  being,  to  sacrifice  his  peculiar  views;  and  in 
stead  of  vainly  insisting  upon  the  immediate  operation  of 

1  Referring    to    Sumner's    "scholarly"    speech    in    opposition.     See 
supra,  ch.  iii,  p.  205. 


306  HISTORY  OF  THE  COMMITTEE  [306 

all  that  is  right,  to  accept  what  is  possible,  and  "  all  these* 
things  shall  be  added  unto  you." 

The  third  section  was  attacked  in  the  House  by  both  con 
servative  Republicans  and  the  Democrats.  Elaine  thought 
it  would  lay  the  National  Government  open  to  the  charge 
of  bad  faith,  and  suspected  that  since  Congress  had  prev 
iously  given  the  President  the  power  to  pardon  certain 
rebels,  their  subsequent  disfranchisement  would  seem  to  be 
inconsistent  if  not  unjust.1  A  Democrat  suggested  that  it 
looked  a  little  foolish  to  proceed  on  the  theory  that  a  rebel, 
after  being  branded  as  an  outlaw  and  disfranchised  for 
four  years,  would  at  the  end  of  that  time  be  converted  into 
a  true  and  loyal  citizen,  perfectly  qualified  to  be  entrusted 
with  the  franchise.2  Continuing  in  language  the  truth  of 
which  may  now  be  seen,  he  said : 

The  committee  have  had  the  opportunity,  in  the  most  import 
ant  period  of  our  history,  to  have  inscribed  their  names  among 
the  first  statesmen  of  the  age,  by  a  liberal  and  enlightened  pol 
icy,  which  would  have  bound  all  sections  of  the  country  to 
gether  in  the  strong  bond  of  mutual  friendship  and  restored 
Union.  That  opportunity  they  have  allowed  to  pass.  Stripped 
of  all  its  disguise,  the  measure  is  a  mere  scheme  to  deny  rep 
resentation  to  eleven  states ;  to  prevent  indefinitely  a  complete 
restoration  of  the  Union  and  perpetuate  the  power  of  a  sec 
tional  party. 

Garfield  profoundly  regretted  that  the  public  virtue  had 
not  been  found  such  that  the  party  could  come  out  on  the 
plain,  unanswerable  proposition  that  every  adult  citizen  of 
the  United  States  should  enjoy  the  right  of  suffrage.3  How 
ever,  he  would  accept  what  he  could  get,  but  he  hoped 

1  Globe,  p.  2460.  2  Finck,  Globe,  p.  2462. 

3  Globe,  pp.  2462-2464. 


307]  THE  FOURTEENTH  AMENDMENT  307 

the  House  would  see  fit  to  eliminate  section  3,  as  it  would 
be  difficult  and  impracticable  of  enforcement.  It  must 
either  remain  a  dead  letter  or  an  army  must  be  maintained 
in  the  South  in  order  to  see  that  it  be  not  evaded. 

Most  of  the  debate  in  the  House  on  the  merits  of  the  \ 
amendment  dealt  with  the  first  and  second  sections  on  civil  \  , 
rights  and  the  basis  of  representation,  respectively.  The  j  / 
arguments  for  and  against  these  two  propositions  having  ! 
been  analyzed  when  they  were  considered  as  separate  amend 
ments,  and  as  no  new  points  were  brought  forward,  it  is 
not  now  necessary  to  dwell  further  upon  them.  The  prin 
cipal  interest  that  attaches  to  the  passage  of  the  amendment 
through  the  House  turns  upon  the  third  section.  Practi 
cally  every  Republican  who  spoke  upon  the  question  ex 
pressed  himself  either  against  the  principle  of  that  section 
or  against  the  practicability  of  its  enforcement.  It  looked 
as  though  it  would  be  stricken  out,  when,  just  before  the 
vote  was  to  be  taken,  Stevens  again  came  to  its  defense.1 
The  third  section  was  the  vital  proposition  of  them  all,  and 
without  it  he  did  not  care  the  snap  of  his  finger  whether  the 
amendment  were  passed  or  not.  If  it  should  be  eliminated 
there  would  be  no  friends  of  the  Union  on  his  side  to  carry 
into  operation  the  other  provisions.  The  other  side  of  the 
House  would  be  filled  with  yelling  secessionists  and  hissing 
copperheads. 

Give  us  the  third  section  or  give  us  nothing.  Do  not  balk  us 
with  the  pretense  of  an  amendment  which  throws  the  Union 
into  the  hands  of  the  enemy  before  it  becomes  consolidated. 
Gentlemen  say  I  speak  of  party.  When  party  is  necessary  to 
sustain  the  Union,  I  say  rally  to  your  party  and  save  the 
Union.  I  do  not  hesitate  to  say  at  once,  that  section  is  there 

1  Globe,  pp.  2533,  2545.    For  a  suggested  interpretation  of  Stevens' 
anxiety  for  the  retention  of  this  section,  see  next  chapter. 


308  HISTORY  OF  THE  COMMITTEE  [308 

to  save  or  destroy  the  Union  by  the  salvation  or  destruction 
of  the  Union  party.  Gentlemen  tell  us  it  is  too  strong — too 
strong  for  what?  Too  strong  for  their  stomachs  but  not  for 
the  people.  It  is  too  lenient  for  my  hard  heart.  Not  only  to  1870, 
but  to  18,070  every  rebel  who  shed  the  blood  of  loyal  men 
should  be  prevented  from  exercising  any  power  in  this  Gov 
ernment.  Gentlemen  here  have  said  you  must  not  humble 
these  people.  Why  not?  Do  not  they  deserve  humiliation? 
If  they  do  not,  who  does  ?  What  criminal,  what  felon  deserves 
it  more,  sir  r  They  have  not  yet  confessed  their  sins ;  and  He 
who  administers  mercy  and  justice  never  forgives  until  the 
sinner  confesses  his  sins  and  humbles  himself  at  his  footstool. 
Why  should  we  forgive  any  more  than  He. 

This  speech  is  one  of  the  best  examples  of  Stevens'  in 
vective  powers,  and  was  confessedly  for  the  purpose  of 
arousing  the  partisan  spirit.  Nevertheless,  there  were 
enough  Republicans  opposed  to  the  third  section,  who,  to 
gether  with  the  Democrats,  could  have  stricken  it  out,  had 
not  about  a  dozen  of  the  latter  believed  it  good  party  tactics 
to  make  the  whole  amendment  as  obnoxious  as  possible,  and 
so  voted  with  the  radicals  rather  than  with  the  conserva 
tives.  As  it  was,  the  section  was  retained  by  the  narrow 
margin  of  84  to  79. x  Among  the  Republicans  who  favored 
its  elimination  were  Elaine,  Garfield,  Raymond,  Hayes,  and 
Bingham  and  Blow  of  the  committee.  All  other  Republican 
members  of  the  committee  voted  for  its  retention  as  did 
also  those  two  Democratic  tacticians  Rogers  and  Grider. 
Had  this  section  been  stricken  out  by  the  House,  it  is  al 
most  certain  that  there  would  have  been  no  penal  section  in 
the  fourteenth  amendment,  as  the  Senate  certainly  would 
not  have  reinserted  it.  In  such  case.  Congress  might  have 
drafted  a  real  plan  of  reconstruction.2 

1  Globe,  p.  2545. 

2  Just  what  I  mean  by  this  statement  will  be  explained  in  ch.  vii. 


209]  THE  FOURTEENTH  AMENDMENT  309 

By  a  vote  of  128  to  37,  the  House  on  May  loth,  passed 
the  amendment  as  it  had  been  reported  by  the  committee.1 

As  has  been  said,  Fessenden  reported  the  amendment  and 
accompanying  bills  to  the  Senate  on  the  same  day  (April 
30th)  that  Stevens  had  introduced  them  into  the  house. 
Although  no  formal  action  was  taken  by  the  upper  House? 
until  several  days  after  the  amendment  had  passed  the 
lower,  two  preliminary  attempts  to  substitute  some  other 
proposition  for  that  of  the  committee  were  made.  On  May 
2d,  Dixon,  who  still  classed  himself  as  a  Republican,  gave 
notice  of  his  intention  to  offer  as  a  substitute  for  the  whole 
plan  of  the  committee  the  following: 

Resolved,  That  the  interests  of  peace  and  of  the  Union  re 
quire  the  admission  of  every  state  to  its  share  in  public  legis 
lation  whenever  it  presents  itself  in  an  attitude  of  loyalty  and 
harmony,  but  in  the  persons  of  representatives  whose  loyalty 
cannot  be  questioned  under  any  constitutional  or  legal  test. 

Dixon  explained  that  his  resolution  was  couched  in  words 
employed  by  the  President  in  the  veto  message  of  the 
Freedmen's  Bureau  bill.  What  the  country  needed  and  ex 
pected  from  Congress  was  a  practical  scheme  for  hastening 
the  re-establishment  of  all  the  states  in  their  full  constitu 
tional  relations.  The  plan  of  the  committee  must  inevitably 
delay  indefinitely  this  result,  for  it  was  impossible  to  be 
lieve  that  any  person  in  his  right  mind  could  expect  that  the 
southern  states  would  accept  the  amendment.  No  self- 
respecting  people  would  voluntarily  disfranchise  themselves 
even  though  it  be  for  only  a  short  term  of  years.  But  grant 
ing  that  they  would  do  so,  how  could  men  who  talk  so  much 
about  a  republican  form  of  government  be  encouraged  to 
look  for  the  fruits  o<f  peace  from  such  a  policy?  Certainly 

1  Globe,  p.  2545. 


310  HISTORY  OF  THE  COMMITTEE 

the  extremes  to  which  partisan  passions  had  been  inflamed 
in  Tennessee  by  the  disfranchisement  of  the  greater  part  of 
the  population  there,  did  not  encourage  practical  men  to  de 
sire  a  similar  wholesale  disfranchisement  in  the  other  south 
ern  states.  The  section  in  regard  to  the  rebel  debt  was  un 
necessary,  as  the  southern  people  certainly  would  not  assume 
it  in  their  poor  condition,  and  it  was  absurd  to  think  of  any 
political  party  going  before  the  people  on  a  platform  de 
manding  that  it  be  paid  by  the  National  Government.  Like 
wise,  section  i  was  unnecessary,  as  the  civil  rights  act  gave 
to  each  citizen  who  might  be  denied  justice  by  state  courts 
the  power  to  appeal  to  the  United  States  courts.  These 
latter  were  commanded  with  all  their  machinery  to  inter 
fere  in  his  behalf,  and  in  the  case  of  an  emergency  to  employ 
the  military  power  to  secure  him  justice. 

To  Dixon,  Sumner  replied  that  he  would  favor  his  propo 
sition  had  Dixon  not  forgotten  that  four  million  slaves  had 
been  declared  freemen  by  the  power  of  the  National  Gov 
ernment,  and  the  same  power  should  secure  to  them  that 
freedom.  Dixon  very  properly  retorted  that  the  amend 
ment  secured  them  nothing  which  they  did  not  already  pos 
sess. 

/  It  was  not  until  May  I4th,  that  the  amendment  was  again 
considered  in  the  Senate.  On  that  day  Stewart  moved  that 
the  punitive  section  be  stricken  out,  and  offered  an  addi 
tional  proposition  for  defining  citizenship.1  No  action  was 
taken  on  his  motion,  however,  and  it  was  not  until  May 
23rd,  nearly  two  weeks  after  the  amendment  had  passed  the 
House,  that  the  Senate  seriously  undertook  its  considera 
tion.  Even  then  some  of  the  radicals  thought  it  should  be 
further  postponed,  for  as  Sumner  confessed,  the  longer 
final  reconstruction  was  deferred  the  more  radical  it  would 

1  Globe,  p.  2560. 


3 1 1  ]  THE  FO  URTEENTH  AMENDMENT  3 1  r 

be.1)  Fessenden  had  not  fully  recovered  from  his  attack  of 
varioloid,  and  hence  was  unable  to  open  the  debate  as  his 
position  of  chairman  of  the  committee  reporting  the  amend 
ment  entitled  him  to  do.  This  duty  devolved  upon  Howard. 
The  objects  of  the  first  section,  *  he  again  pointed 
out,  were  ( i )  to  make  the  prohibitions  of  the  so-called  bill 
of  rights  binding  on  the  states  and  compel  them  to  respect 
these  great  fundamental  guarantees,  and  (2)  to  abolish  all 
class  legislation  in  the  states  and  do  away  with  the  injustice 
of  subjecting  one  caste  of  persons  to  a  code  not  applicable 
to  another.2  He  regretted  the  second  section,  and  himself 
very  much  preferred  that  Congress  should  be  given  direct 
authority  to  bestow  equal  suffrage  on  all  male  citizens  in 
every  state.  Nevertheless,  he  defended  it  as  being  expedient 
and  considered  it  an  improvement  on  the  previous  proposition 
on  the  basis  of  representation,  as  it  would  operate  uniformly 
throughout  the  Union.3  The  third  section  he  had  opposed 
in  committee.4  His  principal  objection  to  it  was  that  it 
would  accomplish  nothing,  for  the  rebels  under  it  would 
still  be  allowed  to  vote  for  members  of  the  state  legislature, 
who  in  turn  could  select  the  presidential  electors.  Person-1 
ally  he  preferred  a  section  prohibiting  all  persons  who  had 
participated  in  the  rebellion  and  were  then  (1866)  over 
thirty  years  of  age  from  holding  either  a  state  or  Federal 

1  Globe,  pp.  2763,  2764. 

3  Globe,  pp.  2764-2768.  Though  the  objects  of  the  civil  rights) 
amendment  were  stated  in  ch.  iii,  p.  217,  I  again  restate  them  in  the  j 
words  of  Howard  in  order  to  show  that  in  the  minds  of  the  mem-  { 
bers  of  the  committee  the  meanings  of  the  first  and  second  forms  f 
of  this  amendment  were  identical.  They  considered  the  change  j 
merely  a  verbal  one  and  intended  in  both  cases  to  confer  upon  I 
Congress  power  to  enforce  by  positive  legislation  equal  civil  rights.  | 

3  Contrariwise,  cf.  Stevens,  supra,  p.  304. 

4  This  was  Howard's  statement  in  the  Senate,  but  the  record  does 
not  bear  him  out  in  it.     See  supra,  pp.  105,  106. 


312  HISTORY  OF  THE  COMMITTEE  [312 

office.  At  this  point  Clark,  of  New  Hampshire,  arose  and 
read  a  substitute  for  section  3  and  gave  notice  that  at  the 
proper  time  he  would  offer  it.  This  substitute  embodied  the 
principles  of  the  bill  declaring  certain  persons  ineligible  for 
office,  which  had  been  framed  and  reported  by  the  com 
mittee.1  Howard  said  he  would  support  this  substitute,  and 
it  did  in  fact  later  become  section  3.  He  realized  there  was 
not  much  danger  that  the  rebel  debt  would  ever  be  paid  by 
anybody.  Nevertheless,  so  long  as  it  remained  in  quasi-ex- 
istence  it  might  be  a  subject  of  political  squabbling  and 
party  wrangling. ) 

Wade  suggested  that  the  amendment  be  changed  by  re 
placing  section  2  with  the  old  resolution  on  the  basis  of 
representation,  which  had  previously  been  defeated.2  He 
also  thought  the  amendment  would  be  strengthened  by  omit 
ting  the  punitive  section  and  by  adding  to  section  4  a  clause 
declaring  valid  the  National  debt,  including  debts  incurred 
,  for  payment  of  pensions  and  bounties.  In  section  one  he 
\  desired  to  substitute  for  the  word  citizens,  the  words  persons 
born  in  the  United  States  or  naturalized  by  the  laws  thereof. 
He  explained  that  the  word  citizen  had  no  exact  meaning 
in  the  United  States,  and  feared  that  if  the  Democrats  ob 
tained  control  of  the  Government  they  would  in  all  proba 
bility  put  a  different  construction  upon  it  from  that  given  it 
by  the  Republicans, 

On  May  24th,  Stewart,  keenly  disappointed  that  his  own 
proposition  had  not  been  accepted  by  the  committee,  deliv 
ered  what  is  by  far  the  most  interesting  and  statesmanlike 
speech  that  was  made  on  the  general  subject  of  reconstruc 
tion  at  any  time  during  the  session.3  The  amendment,  said 

1  See  supra,  p.  119. 
*  Globe,  pp.  2768-2771. 
8  Ibid.,  pp.  2798-2804. 


3!3]  THE  FOURTEENTH  AMENDMENT 

he,  had  been  urged  because  of  its  expediency;  but  as  a 
matter  of  fact  no  man  really  knew  what  was  expedient,  be 
cause  every  one  was  liable  to  estimate  the  sentiments  of  the 
whole  country  by  the  views  of  a  few  friends  or  a  small  por 
tion  of  his  constituents,  modified  by  his  own  peculiar  ideas 
and  wishes.  Apparently  there  was  very  little  difference  be 
tween  Union  men  as  to  what  ought  to  be  done  if  they  had 
the  power  to  do  it.  He  was  of  the  opinion  that  it  was  ex 
pedient  to  do  right  and  that  it  was  easier  to  agree  as  to 
what  was  right  than  as  to  what  would  be  likely  to  return 
A  or  B  or  C  to  Congress.  "  The  Union  party  agree  that 
all  men  are  entitled  to  life,  liberty,  and  the  pursuit  of  hap 
piness,  and  they  will  endorse  any  necessary  means  to  secure 
those  inalienable  rights  to  every  American  citizen."  The 
more  direct  and  positive  the  plan,  the  better.  All  digres 
sions  from  principle  would  involve  the  Union  party  in  new 
difficulties  and  increase  its  embarrassments.  The  President's 
plan  of  restoration  was  unsatisfactory,  because  it  ignored 
the  civil  rights  of  four  million  loyal  citizens  guilty  of  no  of 
fense  but  fidelity  to  the  Government  and  excluded  them  from 
constitutional  liberty.  Nevertheless,  he  had  hesitated  at  the 
beginning  of  the  session  to  condemn  that  plan  because  no 
better  one  seemed  likely  of  adoption.  Since  then,  how 
ever,  two  noble  sentiments  had  become  manifest  upon  which 
the  people  of  the  North  might  unite — protection  for  friends 
of  the  Union,  and  mercy  to  a  fallen  foe.  Mercy  pleaded 
generous  amnesty;  justice  demanded  impartial  suffrage. 
Both  principles  were  buried  beneath  an  ocean  of  prejudice, 
but  he  firmly  believed  that  the  only  solution  of  the  problem 
was  one  based  upon  these  two  humane  and  just  principles, 
having  as  they  did  the  support  of  an  enlightened  press  and 
public  opinion.  To  those  who  criticized  him  for  advocating 
negro  suffrage  when  formerly  he  had  opposed  it,  he  replied, 
in  the  language  of  Lincoln,  that  he  adopted  "  new  views 


314  HISTORY  OF  THE  COMMITTEE 

whenever  they  appear  to  be  true  views."  If  all  those  who 
had  changed  their  opinions  during  the  preceding  six  years 
should  vote  for  his  proposition,  the  others  could  vote  as 
they  pleased. 

The  world  moves,  and  those  who  do  not  perceive  it  are  dead 
to  the  living  issues  of  the  day.  I  have  always  advocated  the 
necessity  of  taking  the  world  as  we  find  it,  and  following  the 
logic  of  events.  The  development  of  new  facts  is  constantly 
exploding  old  theories.  The  trouble  is  that  some  men  do  not 
seem  to  comprehend  the  new  facts.  ...  In  advocating  this 
plan  I  am  profoundly  impressed  with  the  conviction  that  if 
this  Union  is  ever  restored,  it  must  be  done  with  impartial  suf 
frage  and  general  amnesty. 

Stewart  declared,  however,  that  he  realized  that  there 
were  two  obstacles  in  the  way  of  adopting  his  proposition, 
both  based  upon  passion  and  prejudice,  and  each  nearly  in 
surmountable.  One  was  hatred  of  rebels,  and  a  demand 
that  they  be  disfranchised;  the  other  was  hatred  of  the  ne 
groes  and  a  demand  that  they  be  disfranchised. 

The  great  mass  of  the  people  of  the  South  are  either  rebels 
or  negroes,  and  if  we  yield  to  either  demand  the  struggle  is 
not  ended.  The  party  left  in  power,  whether  it  be  black  men 
or  white  men,  will  soon  display  all  the  meaner  qualities  of 
despotism,  intolerance,  arrogance  and  above  all  a  fierce  hatred 
for  the  democratic  protective  principle  of  the  equality  of  man. 
If  we  yield  to  both  these  demands,  and  disfranchise  both  blacks 
and  whites,  what  will  become  of  our  free  government,  for 
which  we  were  willing  to  sacrifice  the  last  dollar  and  the  last 
man  ? 

Let  justice  be  done,  and  then  it  becomes  the  duty  of  every 
loyal  man  to  invoke  mercy  even  for  those  who  have  attempted; 
the  destruction  of  our  free  institutions.  We  will  then  reflect 
that  the  South  is  not  alone  responsible  for  slavery  and  all  its 
woes;  that  the  North  and  civilized  Europe  have  all  played  a 


315]  THE  FOURTEENTH  AMENDMENT 

part  in  planting  this  vile  institution  upon  the  most  favored 
section  of  our  common  country,  and  the  whole  nation  has  been 
clothed  in  sackcloth  and  ashes  because  of  the  great  crime. 
When  the  evil  is  removed  and  the  rights  of  man  acknowledged 
we  will  cease  to  enquire  who  is  most  to  blame,  or  who  is  most 
guilty,  but  we  will  labor  to  forget  the  past  in  view  of  the  brighti 
prospect  of  peace  and  justice. 

Immediate  and  universal  suffrage  may  not  be  wise,  but  what 
danger  can  there  be  in  allowing  all  the  negroes  to  vote  with 
like  educational  and  moral  qualifications  with  the  whites  here 
after  to  become  voters?  The  white  men  who  have  been  in 
this  rebellion  must  also  have  the  ballot  and  full  enfranchise 
ment,  or  they  must  be  driven  out  of  the  country,  for  if  you 
retain  them  here  disfranchised  enemies,  the  extraordinary 
powers  necessarily  devolving  upon  the  few  whom  you  trust 
with  political  rights  must  make  them  tyrants.  Every  attempt 
to  govern  a  state  by  a  minority,  however  loyal  that  minority 
may  be,  is  a  mockery  on  republican  institutions  and  will  in 
evitably  produce  anarchy  and  discord.  There  will  be  no  peace- 
in  Maryland,  Missouri,  or  Tennessee  until  the  people  are  en 
franchised. 

In  conclusion,  he  declared  the  world  would  brand  the  Re 
publicans  as  factionists  and  their  efforts  as  a  struggle  for 
partisan  power  if  they  relied  on  expediency  rather  than  on 
justice.1 

Sherman  moved  to  replace  sections  2  and  3  with  clauses 
providing  respectively  for  apportioning  representation  ac 
cording  to  male  voters  and  direct  taxes  according  to  prop 
erty  values  in  each  state.2 

Five  days  elapsed  before  the  Senate  again,  on  May  29th, 

1  My  purpose  in  quoting  thus  at  length  from  Stewart's  speech,  and 
infra  from  that  of  Hendricks,  I  shall  try  to  make  clear  in  the 
succeeding  chapter. 

*  Globe,  p.  2804. 


3i6  HISTORY  OF  THE  COMMITTEE 

resumed  consideration  of  the  amendment.  On  each  of  those 
five  days  the  Republican  senators  spent  several  hours  in 
caucus,  in  which  they  finally  adjusted  their  differences  in 
regard  to  the  terms  of  the  amendment.1  The  net  result  of 
these  caucuses  was  the  fourteenth  amendment  in  its  present 
f  orm.  It  will  be  noted  that  the  principal  changes  made  were 
in  the  first,  third,  and  fourth  sections.  To  the  first  section 
was  added  the  clause  defining  who  are  citizens  of  the  United 
States,  which  was  for  the  purpose,  as  Howard  said,  of  re 
moving  all  doubt  on  that  question.2  The  original  third  sec 
tion  was  stricken  out,  and  in  its  place  was  incorporated  a 
section  embodying  the  principles  of  the  bill  declaring  cer 
tain  persons  ineligible  to  office.*  In  the  fourth  section 
Wade's  suggestion  as  to  declaring  the  validity  of  the  Na 
tional  debt  was  inserted.4  In  addition  two  or  three  verbal 
changes  were  made.  On  May  3Oth,  Reverdy  Johnson,  who 
perhaps  understood  southern  sentiment  better  than  any 
other  man  in  the  Senate,  declared  emphatically  that  the  new 
third  section  would  be  just  as  objectionable  to  the  southern 
people  as  the  old  one,  and  he  was  absolutely  sure  that  the 
southern  states  would  reject  the  amendment  and  principally 
on  account  of  this  section.5  "  Do  you  want  to  act  upon  the 
public  opinion  of  the  masses  of  the  South?  Do  you  not 
want  to  win  them  back  to  loyalty?  And  if  you  do,  why 
strike  at  the  men  who,  of  all  others,  are  most  influential  and 
can  bring  about  the  end  which  we  all  have  at  heart?  " 
The  death  of  Gen.  Winfield  Scott  caused  two  or  three 

1  See  infra,  p.  317.  See  also  newspapers  for  May  25  to  29.  So  far 
as  I  know  the  secret  proceedings  of  this  caucus  have  never  come  to 
light.  Though  nearly  fifty  years  have  passed,  neither  in  memoirs,  nor 
in  letters  published  or  unpublished,  has  any  senator  then  present  made 
a  statement  of  what  went  on  in  this  caucus. 

*  Globe,  p.  2890.  3See  supra,  p.  119. 

4  See  supra,  p.  312.  5  Globe,  p.  2902. 


3  !  7]  THE  FO  URTEENTH  AMENDMENT  3  x  7 

more  days  delay  in  the  consideration  of  the  amendment  and 
it  was/not  until  June  4th  that  the  discussion  on  it  was  re 
sumed.  On  that  day  Thomas  A.  Hendricks,  who  was  then 
a  Democratic  senator  from  Indiana,  delivered  his  well- 
known  philippic  against  the  policy  of  deciding  in  a  party 
caucus  upon  so  grave  a  matter  as  a  constitutional  amend 
ment,  designed  to  alter  the  fundamental  principles  of  our 
Government.1  He  pointed  out  that  the  first  report  of  the 
joint  committee  had  been  defeated,  and  this  second  one  when 
first  presented  to  the  Senate  seemed  doomed  to  the  same 
fate. 

A  second  defeat  of  a  party  program  could  not  be  borne;  its 
effects  upon  the  fall  elections  would  be  disastrous.  A  caucus 
was  called  and  we  witnessed  the  astounding  spectacle  of  the 
withdrawal  for  the  time,  of  a  great  legislative  measure,  touch 
ing  the  Constitution  itself,  from  the  Senate,  that  it  might  be 
decided  in  the  secret  councils  of  a  party.  For  three  days  the 
Senate  chamber  was  silent  but  the  discussions  were  trans 
ferred  to  another  room  of  the  capitol,  with  closed  doors  and 
darkened  windows,  where  party  leaders  might  safely  contend 
for  a  political  and  party  policy. 

He  then  showed  how  an  actual  minority  of  the  Senate, 
by  such  proceedings,  could  pass  a  constitutional  amendment. 
There  were  forty-nine  members,  thirty-nine  Republicans 
and  ten  Democrats.  In  caucus  twenty  Republicans  voting 
for  the  amendment  could  bind  the  other  nineteen.  Hence* 
the  amendment  may  pass  the  Senate  though  there  be  only 
twenty  men  out  of  forty-nine  who  really  favor  it. } 

So  carefully  has  the  obligation  of  secrecy  been  observed  that 
no  outside  persons,  not  even  the  sharp-eyed  men  of  the  press, 
have  been  able  to  learn  one  word  that  was  spoken,  or  one  vote 
given. 

1  Globe,  pp.  2938-2942. 


318  HISTORY  OF  THE  COMMITTEE 

If  section  2  fixes  the  principle  that  those  who  do  not  vote 
should  not  be  voted  for,  why  are  foreigners  in  northern  states 
represented  though  they  must  remain  without  a  vote  for  at 
least  five  years?  If  in  Maryland,  West  Virginia,  Tennessee, 
and  Missouri  the  majority  are  treated  as  unfit  to  vote,  why 
shall  the  minority  vote  for  them?  Come  now  let  candor  and 
truth  have  full  sway,  and  answer  me ;  is  it  not  because  you  be 
lieve  that  the  few  in  these  states  now  allowed  to  vote  will  send 
radicals  to  Congress,  and  therefore  you  allow  them  to  send  full 
delegations  that  it  may  add  to  your  party's  political  power? 
Why,  if  the  principle  be  right  that  none  but  voters  ought  to 
be  represented,  do  you  not  say  so.  If,  as  you  will  say,  the  ne- 
groes  ought  to  have  the  right  of  voting,  why  do  you  not  in  plain 
words  confer  it  upon  them,  instead  of  trying  to  coerce  the 
states  by  this  indirect  measure  to  give  it  to  them? 

To  the  argument  that  by  the  result  of  the  war  the  repre 
sentation  of  the  South  would  be  increased,  he  gave  two  an 
swers  :  ( i )  the  slaves  were  not  made  free  by  the  voice  of 
the  South,  but  by  the  constitutional  amendment  that  was 
demanded  by  the  North,  and  the  North  could  not  well  com 
plain  of  the  consequences  of  her  own  act;  (2)  he  was  will 
ing  to  continue  the  old  three-fifths  arrangement  in  regard 
to  the  representation  of  negroes  so  long  as  they  were  not 
enfranchised. 

Against  the  third  section  common  sense  alone  was  suffi 
cient  argument.  Such  a  harsh  and  sweeping  measure  would 
include  many  excellent  men  whose  services  in  the  work  of 
reconstruction  would  be  of  the  greatest  value  to  the  country. 
Some  of  these  men  had  displayed  heroic  courage  in  stand 
ing  out  against  the  secession  movement,  and  though  after 
wards  they  were  forced  by  the  logic  of  events  to  yield  obe 
dience  to,  and  to  serve,  the  established  government  de  facto, 
they  had  always  at  heart  been  Union  men  and  therefore 
should  not  be  proscribed.  As  a  penalty  for  crime  the  meas- 


319]  THE  FOURTEENTH  AMENDMENT  319 

ure  was  ex  post  facto,  and  if  passed  as  an  ordinary  law  it 
would  therefore  be  unconstitutional.  "  Mr.  President," 
said  he,  "  do  you  think  there  will  enough  good  come  of  this 
to  justify  us  in  departing  from  the  principle  which  is  found 
in  the  Constitution  of  the  United  States  and  of  every  state 
in  the  Union,  that  a  man  shall  be  punished  only  according 
to  the  law  in  force  at  the  time  the  act  is  done?  " 

Though  the  amendment  was  debated  for  three  more  days 
during  which  a  number  of  Republicans  expressed  their  dis 
satisfaction  with  it  as  a  settlement  of  the  reconstruction 
question,  any  effort  to  make  any  further  changes  in  its  pro 
visions  met  with  the  opposition  of  a  party  governed  abso 
lutely  by  King  Caucus.  In  vain  did  Doolittle,  whom  the 
Republicans  called  the  apostate,  plead  with  his  former  as 
sociates  that  they  allow  the  various  sections  to  be  sent  separ 
ately  to  the  states  for  ratification.1  It  was  of  no  avail  that 
Cowan,  another  apostate,  vehemently  assailed  his  old  friends 
and  charged  them  with  surrendering  their  individual  prin 
ciples  and  acting  from  motives  of  party  alone.2  On  June 
8th  the  vote  was  taken  and  the  amendment  passed  thirty- 
three  to  eleven,  four  Democrats  and  one  Republican  being 
absent.3  Five  days  later,  Thaddeus  Stevens  in  the  House 
arose  and  announced  in  a  sad  voice  that  the  members  of  the 
majority  party  had  decided  to  concur  in  the  Senate's  amend 
ments,*  That  was  the  end.  What  has  been  called  the  con 
gressional  plan  of  reconstruction  was  completed.] 

1  Globe,  pp.  2991,  3040. 

2 Ibid.,  pp.  2989-2991. 

*Ibid.,  pp.  3040-3042. 
4  Ibid.,  pp.  3144-3149. 


CHAPTER     VII 
DID  CONGRESS  HAVE  A  PLAN  OF  RECONSTRUCTION? 

IT  is  impossible  to  give  a  categorical  answer  to  this 
question.  Most  writers  have  regarded  the  fourteenth 
amendment  as  the  plan  of  Congress  for  restoring  the 
southern  states  to  their  places  in  the  Union.  Rhodes 
for  instance,  calls  it  a  "magnanimous  offer"  to  the 
South.  As  a  matter  of  fact,  there  are  grave  doubts  as 
to  whether  it  was  an  "  offer,"  and  each  individual  who 
takes  the  trouble  to  read  the  records,  is  at  liberty  to 
form  his  own  opinion  as  to  its  magnanimity.  The  same 
author  is  also  of  the  opinion  that,  with  the  possible  ex 
ception  of  the  third  section,  the  amendment  was  marked 
by  statesmanship  of  a  high  order;  and  when  he  considers 
that  there  were  no  executions  or  confiscations,  even  the 
third  section  does  not  lack  in  generosity.  Finally,  he 
implies  that  the  southern  states  were  blameworthy  for 
not  taking  advantage  of  the  offer  "  eagerly  and  at 
once."1 

The  purpose  of  this  chapter  is  not  controversial,  and 
it  is  not  my  intention  to  attempt  to  refute  Mr.  Rhodes 
or  any  other  writer  who  has  held  opinions  similar  to  his. 
Since,  however,  this  is  a  history  of  the  reconstruction 
committee,  and  if  there  were  a  congressional  plan,  it 
must  have  been  the  creation  of  that  committee,  an  in 
quiry  into  the  extent  to  which  the  fourteenth  amendment 

1  Rhodes,  vol.  v,  pp.  602-610. 
320  [320 


32 1  ]  PLAN  OF  RECONSTRUCTION  321 

may  be  regarded  as  such  a  plan  of  reconstruction  would 
seem  to  be  necessary  and  proper.  In  order  to  make 
this  inquiry,  I  shall  examine  four  matters  which  tend  to 
throw  light  upon  the  question.  These  matters  are:  (i) 
The  formal  report  of  the  chairman  of  the  committee; 
(2)  The  action  by  Congress  on  the  bill  for  restoring  the 
southern  states,  which  was  reported  by  the  committee,1 
and  the  attempted  modifications  of  that  bill ;  (3)  The 
action  taken  by  Congress  in  finally  passing  the  commit 
tee's  resolution  for  the  restoration  of  Tennessee;2  (4) 
The  opinions  expressed  in  regard  to  the  question,  by 
members  of  Congress,  their  outside  supporters  and  op 
ponents. 

It  will  be  remembered  that  the  committee  instructed 
Fessenden  to  prepare  a  formal  report  which  was  to  be  in 
the  nature  of  a  defense  of  the  .measures  which  the  com 
mittee  presented  to  Congress  on  April  3<D.3  This  Fes 
senden  did,  and  after  he  had  submitted  it  to  his  col 
leagues  on  the  committee,4  he  presented  it  to  the  Senate 
on  June  8,  and  on  the  same  day  Stevens  presented  it  to 
the  House.5 

The  report  maintains  that  the  people  of  the  rebel 
states  had  risen  in  insurrection  against  the  United  States, 
severed  their  political  relations  as  states  with  the  Union, 
renounced  their  allegiance  and  established  de  facto  gov 
ernments  for  themselves.  In  support  of  their  enterprise 
they  had  levied  war  on  the  United  States  for  four  years 

1  See  supra,  p.  117.  *  See  supra,  pp.  63  et  seq. 

5  See  supra,  p.  114.  4  See  supra,  p.  120. 

5  Globe,  pp.  3038,  3051.  The  report  in  full  may  be  found  in  vol.  ii, 
Reports  of  Committees,  ist  sess.,  3pth  Cong.;  also  in  McPherson,  p. 
88  et  seq.;  and  in  Fessenden's  Life  of  Fessenden,  vol.  ii,  p.  67  et  seq. 
In  my  analysis  of  the  report  no  further  page  references  will  be  given. 
The  language  of  the  report  will  be  closely  followed. 


322  HISTORY  OF  THE  COMMITTEE  [322- 

and  had  finally  laid  down  their  arms,  not  because  they 
were  convinced  that  their  action  had  been  a  crime  of 
which  they  repented,  but  because  they  were  physically 
unable  to  prolong  the  struggle.  The  committee  agrees 
with  the  President,  that  at  the  close  of  the  war  the  rebel 
states  were  utterly  devoid  of  civil  governments,  but  as  to 
whose  duty  it  is  to  rehabilitate  them,  it  does  not  agree 
with  him.  Moreover,  it  is  urged  that  the  conflict  had 
taken  on  the  proportions  of  a  civil  war  of  the  greatest 
magnitude,  which,  by  the  law  of  nations,  gave  the  con 
queror  the  right  to  exact  security  from  the  vanquished 
against  the  renewal  of  the  conflict. 

The  foregoing  argument  is  nothing  more  nor  less  than 
the  "conquered  province"  theory  of  Thaddeus  Stevens, 
but  the  committee  does  not  definitely  commit  itself  to 
that  theory.  It  argues  that  is  not  necessary  to  discuss 
the  question  as  to  whether  the  rebel  states  are  in  or  out 
of  the  Union,  but  is  willing  to  grant  the  "profitless  ab 
straction  "  that  they  are  still  within  the  Union,  thus 
committing  itself  to  the  "  forfeited  rights  "  theory.1  Fol 
lowing  this  theory,  it  holds  that  even  though  the  rebel 
states  are  still  in  the  Union,  they  have  placed  themselves 
by  the  act  of  rebellion  in  a  condition  which  abrogates 
the  powers  and  privileges  incident  to  states  and  denies 
them  all  pretense  of  right  to  enjoy  such  powers  and 
privileges. 

The  argument  then  closely  follows  Sumner's  "suicide" 
theory,  maintaining  that  a  state  has  certain  duties  to 
perform  as  a  member  of  the  Union,  and  if  it  faithfully 
discharges  those  duties,  certain  privileges  and  rights  be 
long  to  it.  If,  however,  the  state  attempts  to  evade 
discharge  of  its  obligations,  then  Congress  has  the 

lFor  an  explanation  of  these  theories,  see  Dunning,  Essays,  p.  90 
et  seq. 


323]  PLAN  OF  RECONSTRUCTION  ^2^ 

power  to  force  it  to  the  performance  of  its  duty;  but 
the  state's  privileges  and  rights  are  forfeited  and  cannot 
be  restored  to  it  until  every  condition  which  Congress 
sees  fit  to  impose  has  been  complied  with,  and  the  state 
shown  proofs  of  an  earnest  desire  to  return  to  its  former 
allegiance.  This  theory  is  applied  by  the  committee  as 
the  basis  of  the  refutation  of  those  people — principally 
the  President — who  are  urging  that  Congress  is  violat 
ing  the  great  principle  of  taxation  only  with  the  consent 
of  the  taxed  by  imposing  laws  and  taxes  upon  the  south 
ern  states  without  allowing  them  representation  in  the 
law-making  body. 

It  is  not  within  the  province  of  this  analysis  to  discuss 
at  length  the  committee's  justification  of  sections  i  and 
2  of  the  fourteenth  amendment,  as  such  justification  has 
been  considered  above.1  Suffice  it  to  say  that  the  com 
mittee  felt  that  it  was  only  justice  to  the  colored  loyalists 
in  the  South,  and  to  the  northern  people  themselves, 
that  the  rebel  states  be  required  to  ratify  such  amend 
ments  before  they  be  re-admitted  to  representation  in 
Congress.  The  committee  then  prescribes  the  method 
of  proceeding  which  a  rebel  state  should  follow.  First, 
a  convention  should  be  assembled  under  competent  au 
thority.  Such  authority  ordinarily  emanates  from  Con 
gress,  but  the  committee  is  not  disposed  to  criticise  the 
President  for  his  action  in  this  regard.  Second,  the 
convention  should  proceed  to  form  a  constitution  which 
should  contain  a  refutation  of  the  deadly  heresy  of 
secession,  a  recognition  of  the  validity  of  all  laws  passed 
by  Congress  since  the  rebellion  began,  and  finally,  should 
incorporate  all  the  principles  embodied  in  the  thirteenth 
and  fourteenth  amendments  to  the  United  States  Consti- 

1  Chapters  iii,  v  and  vi. 


324  HISTORY  OF  THE  COMMITTEE  [324 

tution.  The  constitution  thus  formed  should  be  submitted 
to  the  people  for  ratification.  Fourth,  in  case  the  people 
adopt  the  constitution,  a  legislature  should  be  called, 
which  may  proceed  with  the  election  of  senators  and 
make  provision  for  the  election  of  representatives  in  ac 
cordance  with  the  laws  of  Congress  regulating  repre 
sentation.  Fifth,  proof  that  such  action  had  been  taken 
should  be  submitted  to  Congress  for  approval.  It  is 
interesting  to  note  that  with  the  exception  of  the  pre 
scription  of  negro  suffrage  and  military  rule,  the  forego 
ing  is  essentially  the  method  of  procedure  laid  down  by 
Congress  in  the  Reconstruction  acts  of  1867. 

The  committee  then  declares  that  in  no  case  have  the 
afore-mentioned  plan  of  procedure  and  conditions  been 
complied  with,  therefore  one  of  two  alternatives  must  be. 
adopted  by  Congress.  In  the  first  place,  it  could  waive 
all  formalities  and  admit  the  states  lately  in  rebellion  at 
once,  trusting  that  time  and  experience  would  set  all 
things  right.  However,  in  the  face  of  the  evidence 
already  reviewed  relating  to  the  prevalence  of  southern 
disloyalty,  the  committee  does  not  feel  that  it  would  be 
justified  in  recommending  such  a  course  to  Congress. 
In  fact,  it  is  declared  that  to  allow  such  unrepentant 
rebels  as  for  the  most  part  have  been  elected  by  con 
stituencies  who  believe  in  the  right  of  secession  as  much 
as  ever,  to  take  their  place  in  Congress  without  any 
guarantee  of  their  own  or  their  constituents'  loyalty, 
would  be  a  simple  method  of  transferring  the  scene  of 
war  from  the  field  of  battle  to  the  halls  of  Congress, 
where  the  conquered  rebels,  through  their  representa 
tives,  would  seize  upon  the  very  government  they  had 
fought  to  destroy.  Such  a  course  would  be  a  disaster 
of  greater  magnitude  than  the  surrender  of  Grant  to  Lee, 
and  Sherman  to  Johnston,  would  have  been ;  for  in  the 


325]  PLAN  OF  RECONSTRUCTION 

latter  event,  new  armies  could  have  been  raised,  but  to 
allow  the  rebels  in  coalition  with  their  friends  at  the 
North  to  take  control  of  the  government,  would  be  even 
more  infamous  than  that  anti-coercive  policy  which  per 
mitted  the  rebellion  in  the  beginning  to  take  form  and 
gather  force. 

Therefore  the  committee  is  forced  to  adopt  the  second 
alternative  and  summarizes  the  answer  to  the  inquiry  as 
to  whether  "  the  so-called  Confederate  states  or  any  of 
them  are  entitled  to  be  represented  in  either  house  of 
Congress,"  in  the  following  paragraph  : 

The  conclusion  of  your  committee  therefore  is  that  the  so- 
called  Confederate  states  are  not,  at  present,  entitled  to  repre 
sentation  in  the  Congress  of  the  United  States  ;  that  before 
allowing-  such  representation,  adequate  security  for  future  peace 
and  safety  should  be  required ;  that  this  can  be  found  only  in 
such  changes  of  the  organic  law  as  shall  determine  the  civil 
rights  and  privileges  of  all  citizens  in  all  parts  of  the  republic, 
shall  place  representation  on  an  equitable  basis,  shall  fix  a  stigma 
upon  treason  and  protect  the  loyal  people  against  future  claims 
for  the  expenses  incurred  in  the  support  of  rebellion  and  for 
manumitted  slaves,  together  with  an  express  grant  of  power 
to  Congress  to  enforce  those  provisions.  To  this  end  they 
offer  a  joint  resolution  for  amending  the  Constitution  of  the 
United  States,  and  the  two  several  bills  designed  to  carry  the 
same  into  effect. 

The  report  was  highly  satisfactory  to  the  radical  poli 
ticians,  who  realized  that  upon  its  reasoning  they  must 
defend  their  position  before  the  country.  In  fact,  it 
seems  to  have  been  written  principally  for  the  purpose 
of  a  campaign  document,  and  it  had  the  peculiar  quality 
of  suiting  all  the  varying  degrees  of  Republican  senti 
ment.  To  the  conservative  it  implied  that  the  Johnson 
state  governments  in  the  South  were  competent  to  ratify 


326  HISTORY  OF  THE  COMMITTEE  [326 

a  constitutional  amendment,  and  if  they  should  do  so  the 
southern  delegations  would  be  admitted  to  Congress. 
But  in  no  place  did  the  report  definitely  say  those  states 
were  to  ratify  the  amendment,  nor  does  it  expressly 
recommend  that  their  representatives  and  senators  be 
admitted  in  case  they  should  do  so.  On  the  other  hand, 
it  seemed  to  prove,  and  doubtless  to  the  complete  satis 
faction  of  the  extreme  radicals,  that  those  state  govern 
ments  were  not  legally  constituted,  and  it  allows  the  in 
ference  to  be  drawn  that  Congress  alone  can  provide 
the  machinery  for  creating  such  legal  governments,  and 
nowhere  is  it  said  that  Congress  might  not  yet  exercise 
its  authority  in  that  regard.  Moreover,  from  an  exam 
ination  of  the  evidence,  Fessenden,  the  author  of  the  re 
port,  finds  that  nearly  every  white  person  in  the  South 
is  disloyal,  and  for  that  reason,  Congress  found  it  unwise 
"to  waive  all  formalities"  and  admit  the  southern  repre 
sentatives  at  once.  Constituencies  composed  of  such 
persons,  said  he,  are  unfit  to  be  represented.  Nowhere 
does  he  express  the  opinion  that  the  adoption  of  the 
fourteenth  amendment  would  make  them  any  more  loyal, 
and  hence  fit  for  representation. 

The  most,  then,  that  can  be  said  for  the  report  is  that 
it  implies  a  congressional  plan  of  reconstruction,  but 
does  not  absolutely  affirm  that  the  committee's  chief 
measure,  the  fourteenth  amendment,  was  to  serve  as  the 
only  additional  condition  to  be  imposed  upon  the  south 
ern  states,  precedent  to  the  admission  of  their  delega 
tions  into  Congress.  It  is  quite  true  that  Fessenden 
personally  hoped  and  perhaps  expected  that  such  would 
be  the  case,  but  as  already  pointed  out,  he  was  writing 
primarily  not  his  own  opinions  but  such  ideas  as  would 
be  serviceable  to  all  sorts  of  Republican  congressmen  in 
their  appeal  to  the  people  for  re-election. 


327]  PLAN  OF  RECONSTRUCTION  327 

But  the  report  did  recommend  to  Congress  the  adop 
tion  of  the  bill  for  restoring  the  southern  states.1  Let 
us  see  whether  that  recommendation  was  adopted. 

The  history  of  this  bill  in  the  House  and  in  the  Senate, 
its  various  postponements,  and  proposed  amendments  to 
and  substitutes  for  it,  will,  even  at  the  risk  of  tedious- 
ness,  be  given  in  detail  in  order  to  show  that  the  major 
ity  of  the  Republican  party  were  at  no  time  willing  to 
promise  unreservedly  to  restore  the  southern  states  upon 
their  ratifying  the  fourteenth  amendment. 

It  will  be  remembered  that  Stevens  and  Fessenden  in 
troduced  this  bill  into  their  respective  houses  at  the 
same  time  they  reported  the  fourteenth  amendment.  In 
the  house,  a  motion  was  made  and  carried  that  the  con 
sideration  of  the  bill  be  postponed  till  May  9."  This  was 
on  April  30,  and  the  next  day  Boutwell  offered  to  amend 
the  bill  so  that  only  Arkansas  and  Tennessee  were  prom 
ised  admission  after  duly  ratifying  the  amendment  and 
even  they  only  after  "  they  shall  have  established  an  equal 
and  just  system  of  suffrage  for  all  male  citizens  within 
their  jurisdictions  not  less  than  twenty-one  years  old."3 

On  May  2,  Williams,  in  the  Senate,  proposed  that  the 
bill  be  so  amended  as  to  admit  Tennessee  and  Arkansas 
immediately  upon  their  ratification  of  the  amendment, 
even  though  it  had  not  become  a  part  of  the  Constitu 
tion.4  He  further  proposed  that  in  case  the  amendment 
had  not  received  the  ratifications  of  three-fourths  of  all 
the  states  by  March  4,  1867,  but  had  been  ratified 
by  any  of  the  remaining  nine  rebel  states,  such  state 

1  See  supra,  p.  117.     This  bill  provided  that  whenever  a  rebel  state 
ratified  the  fourteenth  amendment,  and  it  had  become  part  of  the  Con 
stitution,  said  state  should  be  entitled  to  representation  in  Congress. 

2  Globe,  p.  2287.  *  Ibid.,  2313. 

id.,  p.  2332  et  seg. 


328  HISTORY  OF  THE  COMMITTEE  [328 

should  be  admitted  on  that  date,  provided  its  constitu 
tion  had  been  changed  so  as  to  conform  to  the  principles 
of  the  amendment. 

In  explanation  Williams  said  that  should  the  rebel 
states  ratify  the  amendment  there  was  little  doubt  that 
enough  of  the  loyal  states  would  do  likewise  to  make  it 
a  part  of  the  Constitution.  But  in  case  the  loyal  states 
should  not  do  so  before  March  4,  1867,  he  saw  no  reason 
to  postpone  longer  than  that  date  the  admission  of  the 
insurgent  states  in  case  they  had  ratified  the  amendment 
by  that  time.  Tennessee  and  Arkansas,  because  of  the 
character  of  their  constitutions  and  laws,  were  entitled  to 
be  excepted,  and  to  have  a  preference  over  the  other 
rebel  states. 

Though  the  House  had  postponed  the  bill  for  restor 
ing  the  southern  states  until  May  9,  it  was  not  until  the 
1 5th  that  it  was  reached  in  the  regular  order  of  business. 
Stevens  moved  to  postpone  it  for  two  weeks  more  in 
order,  as  he  said,  to  give  the  Senate  time  to  act  on  the 
amendment.1  Bingham  was  immediately  on  his  feet  with 
a  vehement  protest  against  further  delay.  He  hoped 
action  would  be  taken  on  it  at  once  and  declared  the 
country  expected  Congress  to  present  its  whole  plan  of 
reconstruction  as  soon  as  possible.  Moreover,  he  had 
the  same  idea  as  to  Tennessee  as  Williams,  and  desired 
that  the  bill  be  acted  on  immediately  in  order  that  her 
representatives  might  be  seated  before  the  end  of  the 
session,  as  he  had  no  doubt  that  her  legislature  would 
ratify  the  amendment  as  soon  as  given  an  opportunity  to 
do  so.  Price,  another  representative  from  Ohio,  and  a 
friend  of  Bingham,  was  even  more  strenuous  in  objecting 
to  the  postponement  of  the  bill,  and  radical  Republican 

1  Globe,  pp.  2598-2600. 


329]  PLAN  OF  RECONSTRUCTION  329 

as  he  was,  more  than  intimated  that  Congress  was  trying 
to  go  before  the  country  without  committing  itself  to  a 
plan  of  reconstruction,  though  leaving  the  implication 
that  it  had  such  a  plan.  He  hoped  his  party  would  act 
with  sincerity  and  not  leave  itself  open  to  the  charge  of 
duplicity.  Conkling,  who  was  under  the  influence  of 
Stevens,  disavowed  on  the  part  of  those  who  desired 
postponement  any  intention  of  acting  in  bad  faith,  and 
agreed  that  Congress  ought  to  have  a  definite  plan. 
However,  he  concurred  in  Stevens'  opinion  that  the  bill 
ought  not  to  be  acted  on  until  the  Senate  should  pass 
the  amendment,  as  some  changes  might  be  necessary 
should  the  Senate,  as  seemed  likely,  modify  any  of  the 
amendment's  provisions.  Though  Stevens'  motion  re 
ceived  hardly  half  of  the  Republican  vote,  it  was  carried 
with  the  assistance  of  the  Democrats,  who  thought  it 
was  good  party  politics  to  prevent  their  adversaries 
agreeing  upon  a  definite  plan  of  reconstruction. 

Before  proceeding  further  with  the  consideration  of  the 
bill  it  may  be  profitable  to  speculate  for  a  minute  upon 
Stevens'  motives  in  having  it  postponed  at  this  time.  It 
is  probable  that  he  would  have  had  no  particular  objec 
tion  to  passing  the  bill  for  restoring  the  southern  states 
had  he  felt  sure  the  Senate  would  adopt  the  amendment 
without  striking  out  or  materially  modifying  his  beloved 
third  section. 

For  Stevens  no  doubt  knew,  as  every  body  must  have 
known,  that  the  southern  people,  though  humiliated, 
would  not  voluntarily  disfranchise  themselves  even  for 
the  sake  of  obtaining  representation  in  Congress.  There 
fore  he  was  not  afraid  to  promise  admission  to  the  south 
ern  states  on  condition  of  their  doing  something  which 
he  knew  they  would  not  do.  But  he  must  have  been 
pretty  thoroughly  convinced  even  as  early  as  the  fifteenth 


330  HISTORY  OF  THE  COMMITTEE  [330 

of  May  that  his  punitive  section  would  not  be  allowed  to 
stand,  as  it  had  very  few,  if  any,  friends  in  the  Senate. 
Consequently,  he  was  doubtless  sincere  in  desiring  to 
have  the  consideration  of  the  bill  postponed  until  after 
the  Senate  should  have  taken  final  action  on  the  amend 
ment. 

Stevens  as  a  shrewd,  practical  politician  doubtless  be 
lieved  that  in  order  successfully  to  contest  the  coming 
elections,  his  party  must  not  be  left  open  to  the  charge 
of  being  simply  obstructionists  and  having  no  plan  of 
reconstruction  of  their  own.  But  when  the  Republican 
senators  in  caucus  changed  the  third  section  from  the 
old  form  to  the  new,  he  was  no  longer  willing  to  risk 
passing  the  restoration  bill,  for  he  could  have  been  by 
no  means  sure  that  the  southerners,  in  their  great  desire 
again  to  take  part  in  the  National  Government,  would 
not  be  willing  to  debar  a  relatively  few  persons  from 
holding  a  comparatively  small  number  of  offices  in  order 
to  obtain  their  ends.  It  happened  that  at  just  that 
time  he  was  being  urged  on  by  such  journals  as  the 
Nation  and  the  Independent*  to  believe  that  radical 
sentiment  was  developing  with  sufficient  rapidity  in  the 
North  so  that  his  party  might  safely  go  before  the 
country  in  November  in  the  advocacy  of  a  "thorough" 
reconstruction  for  the  South. 

Therefore,  on  May  28,  Stevens  introduced  into  the 
House  what  was  the  first  bill  for  the  real  reconstruction 
in  contradistinction  to  restoration  of  the  southern  states.2 

1  See  issues  during  all  of  May  and  June  of  these  two  papers  in  which 
the  opinion  was  consistently  expressed  that  the  people  were  ready  and 
anxious  to  support  Congress  in   a  plan  of  reconstruction  based  upon 
equal  and  exact  justice.     They  therefore  urged  that  Congress  adopt  such 
a  plan. 

2  This  was  House  bill  623.     House  Journal,  p.  657.     Nowhere  is  the 
bill  printed  in  full,  but  an  abstract  of  it  may  be  found  in  the.  Nation,  June 


33 1  ]  PLAN  OF  RECONSTRUCTION  33! 

In  fact,  it  was  in  the  nature  of  a  substitute  for  the  res 
toration  bill  which  we  have  been  considering.  Briefly 
stated,  it  recognized  the  Johnson  governments  as  de 
facto  and  valid  for  municipal  purposes  only.  They  were 
compelled  in  their  respective  states  to  call  conventions, 
the  members  of  which  were  to  be  elected  by  all  male 
citizens  of  whatever  race  or  color.  Citizens,  however, 
in  this  instance  would  include  only  the  negroes  and  a 
very  small  percentage  of  the  whites,  for  by  one  of  the 
sections  of  the  bill,  all  persons  who  had  held  office  under 
the  government  of  the  so-called  Confederate  States  or 
who  had  taken  an  oath  of  allegiance  thereto  were  de 
clared  to  have  forfeited  their  citizenship.  In  order  again 
to  become  citizens  and  be  qualified  to  vote,  they  must 
be  naturalized  just  as  other  foreigners.  Furthermore, 
it  was  required  that  the  constitutions  and  laws  to  be 
framed  must  place  all  citizens  upon  an  equality  in  respect 
to  civil  and  political  rights,  and  should  such  equality 
ever  in  the  future  be  denied  by  the  repeal  of  the  laws  es 
tablishing  it,  the  guilty  state  would  forthwith  lose  its 
right  to  representation.  Finally,  when  any  state  should 
have  complied  with  the  provisions  of  this  bill,  its  repre 
sentatives  and  senators  would  be  admitted  into  congress. 
Stevens'  bill  was  ordered  to  be  printed,  but  no  further 
action  was  taken  upon  it  at  the  time. 

On  the  next  day,  May  29,  the  two  weeks  for  which 
the  committee's  restoration  bill  had  been  postponed 
having  elapsed,  it  again  came  up  for  consideration.1 
Ashley  of  Ohio,  who  later  became  notorious  as  an  advo- 

5,  1866.  In  terms  and  principles  it  was  very  similar  to  a  bill  introduced 
by  Stevens  early  in  the  second  session  of  the  3Qth  Congress,  and  which 
was  an  immediate  forerunner  of  the  Reconstruction  act.  See  infra, 
chap,  viii,  p.  358. 

1  Globe,  p.  2878  et  seg. 


332  HISTORY  OF  THE  COMMITTEE  [332 

cate  of  impeachment,  offered  an  amendment  which  pro 
vided  that  before  the  southern  states  could  be  readmitted 
a  new  election  for  all  state  and  national  officers  must  be 
held.1  The  amendment  further  provided  that  before  a 
state's  claim  for  admission  could  be  considered  all  these 
offices  must  be  filled  with  men  other  than  those  disquali 
fied  by  the  new  third  section  of  the  fourteenth  amend 
ment  as  adopted  by  the  Republican  senators  in  caucus. 
He  stated  that  personally  he  very  much  preferred  some 
sort  of  bill  that  would  secure  the  franchise  to  the  ne 
groes,  but  he  was  not  himself  prepared  to  offer  such  a 
bill,  as  he  did  not  know  how  best  to  proceed  in  order  to 
accomplish  that  end.  Nevertheless  he  was  fervent  in  his 
desire  that  Congress,  before  adjourning,  should  work  out 
some  plan  whereby  every  loyal  man  in  the  South,  whether 
white  or  black,  should  be  given  the  right  to  vote.  In 
spite  of  his  own  preferences,  however,  he  would  support 
the  committee's  bill  if  nothing  better  could  be  had,  but 
he  hoped  that  at  least  his  amendment  would  be  adopted. 
Latham,  of  West  Virginia,  thought  that  Congress 
ought  to  say  at  once  whether  it  expected  to  accept  the 
Johnson  governments  as  legitimate  or  not.2  For  himself, 
he  firmly  believed  that  they  were  illegal  as  then  exist 
ing,  and  proposed  that  the  reconstruction  committee  be 
charged  with  the  duty  of  making  an  investigation  with  a 
view  of  ascertaining  in  what  way  they  should  be  modified 
so  as  to  qualify  them  to  pass  upon  the  fourteenth  amend 
ment.3  His  speech  concluded  the  consideration  of  the 
bill  for  that  day,  and  the  next  morning  some  one  moved 
that  it  be  postponed  until  June  4,  the  assigned  reason 
being  that  Stevens  was  ill  and  not  able  to  take  charge  of 
the  debate.  The  motion  was  adopted  without  a  division. 

1  Globe,  p.  2881  et  seg.  *lbid.,  p.  2886. 

3 Ibid.,  pp.  2904-2906. 


333]  PLAN  OF  RECONSTRUCTION  333 

It  may  be  said  with  almost  entire  certainty  that  after 
May  29  the  bill  had  no  chance  whatever  of  becoming  law. 
For  it  was  on  this  day  that  the  Republican  senators,  after 
several  conferences  in  caucus,  announced  the  material 
modification  already  noted  in  the  third  section  of  the 
fourteenth  amendment.1  The  second  section  of  that 
amendment  was  a  bitter  pill  for  Sumner  and  the  four  or 
five  other  extreme  radical  senators  who  had  so  persist 
ently  denounced  the  original  amendment  on  the  basis  of 
representation  and  had  been  instrumental  in  defeating  it.2 
It  must  have  been  with  extreme  reluctance  that  Sumner 
agreed  to  vote  for  a  provision  which,  only  four  months 
before,  he  had  declared  was  a  "  compromise  of  sacred 
human  rights."  He  never  pretended  that  he  would  con 
sider  the  fourteenth  amendment  as  a  final  plan  of  recon 
struction,3  and  on  this  very  day  (May  29)  he  offered  to 
amend  the  restoration  bill  so  as  to  compel  the  southern 
states  not  only  to  ratify  the  fourteenth  amendment  but  also 
to  provide  in  their  constitutions  for  universal  suffrage.4 
There  can  be  little  doubt  that  in  order  to  have  him  and 
his  immediate  followers  withdraw  their  opposition  to 
section  2,  the  Republican  caucus  virtually  promised  him 
either  to  incorporate  his  amendment  in  the  restoration 
bill  or  allow  that  bill  to  be  consigned  to  a  permanent 
place  on  the  table.  As  a  matter  of  fact  the  latter  dispo 
sition  was  made  of  it,  for  we  hear  no  more  of  it  in  the 
Senate. 

But  in  the  House,  it  was  a  different  matter.  In  that 
body  was  a  considerable  minority  of  Republicans,  who 
either  from  motives  of  natural  conservatism  or  through 
fear  of  having  their  places  successfully  contested,  were 

1  See  supra,  chap,  vi,  p.  316.          J  See  supra,  chap,  iii,  p.  205. 
1  Rhodes,  vol.  v,  pp.  609,  610.        4  Globe,  p.  2869. 


334  HISTORY  OF  THE  COMMITTEE  [334 

anxious  to  have  Congress  definitely  commit  itself  to  this 
bill.  This  was  especially  true  of  the  Ohio  members  and 
the  representatives  of  other  doubtful  states  like  Connec 
ticut,  Indiana  and  parts  of  New  York.  But  even  here 
the  efforts  to  have  it  disposed  of  \vere  not  so  persistent 
after  May  29th,  as  they  previously  had  been.  It  was 
debated  in  a  more  or  less  desultory  way  from  time  to 
time  throughout  the  remainder  of  the  session.  On  June 
4,  Wilson  of  Iowa,  chairman  of  the  House  judiciary  com 
mittee,  and  a  man  of  some  ability  and  following,  declared 
that  Congress  would  not  do  its  duty  either  to  the  loyal 
whites  or  the  blacks  in  the  South  unless  it  empowered 
the  latter  to  assist  the  former  in  obtaining  control  of  the 
rebel  states  and  holding  them  for  the  party  of  the  Union.1 
After  Wilson's  speech,  the  bill  was  again  postponed  for 
ten  days. 

In  the  meantime,  on  June  n,  Kelley  of  Pennsylvania  in 
troduced  a  substitute  for  the  restoration  bill.2  Like  Ste 
vens'  bill,  it  provided  that  the  existing  southern  state 
governments  should  be  recognized  as  valid  for  municipal 
purposes,  but  they  were  not  to  be  allowed  to  pass  upon 
the  fourteenth  amendment.  In  order  to  have  their 
states  restored  to  full  fellowship  in  the  Union,  they  must 
call  conventions  whose  members  were  to  be  elected  by 
all  men  twenty-one  years  old  or  over,  who  could  read 
the  Constitution.  These  conventions  should  frame  con 
stitutions,  which  must  provide  for  equal  civil  rights 
and  impartial  suffrage.  The  first  legislatures  elected 
under  the  new  governments  might  properly  ratify  the 
fourteenth  amendment,  and  whenever  they  should  do  so, 
universal  amnesty  for  all  citizens  therein  would  forthwith 
be  declared,  and  their  representatives  arid  senators  would 

1  Globe,  pp.  2947-2949.  *lbid.,  p.  3090. 


335]  PLAN  OF  RECONSTRUCTION  335 

immediately  be  admitted  into  Congress.  This  was  the 
first  and  last  of  Kelley's  bill,  and  it  is  only  mentioned 
here  to  show  the  diverse  opinions  that  were  held  as  to 
what  sort  of  legislation  should  be  enacted  by  Congress 
on  the  subject. 

The  restoration  bill  was  debated  from  June  fourteenth 
to  twentieth.  One  Republican  regretted  to  find  that 
there  was  a  disposition  among  his  colleagues  to  postpone 
action  on  the  bill.1  Personally  he  thought  it  was  a  just 
measure,  and  he  hoped  that  Congress  would  not  adjourn 
and  go  before  the  country  without  a  complete  plan  of 
reconstruction.  George  W.  Julian  made  a  long  and  im 
passioned  speech,  and  as  an  original  abolitionist,  pleaded 
that  the  southern  states  be  not  readmitted  until  universal 
suffrage  had  been  secured  in  them.2  He  pointed  out 
that  the  House,  earlier  in  the  session,  had  by  a  vote  of 
more  than  two  to  one  passed  a  bill  giving  the  negroes 
the  right  to  vote  in  the  District  of  Columbia.  He  be 
lieved  that  Congress  had  just  as  much  power  in  the  rebel 
states  as  in  the  District  and  he  hoped  that  his  colleagues 
would  riot  recede  from  the  advanced  position  they  had 
previously  assumed.  In  uttering  these  words,  he  was 
enunciating  the  same  opinion  as  was  expressed  by  three- 
fourths  of  the  Republicans  who  spoke  on  the  question. 
On  June  20,  Stevens  suggested  that  the  bill  be  disposed 
of  by  taking  a  vote  immediately.3  To  this  Banks  ob 
jected,  and  moved  that  it  be  laid  on  the  table. 

His  motion  was  carried,  75  to  20.  There  it  lay  till 
July  20,  when  Stevens  with  a  certain  mock  earnestness 
called  it  up,4  asked  that  it  be  put  on  its  passage,  and  at 
tempted  to  shut  off  debate  by  moving  the  previous  ques- 

1  Windom,  Globe,  p.  3166  et  seg.  *  Globe,  p.  3208  et  seq. 

*  Ibid.,  p.  3303  et  seq.  *  Ibid.,  p.  3981. 


336  HISTORY  OF  THE  COMMITTEE  [336 

tion.  His  followers,  however,  knew  their  master  too 
well  not  to  understand  when  he  was  serious  and  when 
he  was  trifling,  so  they  obligingly  failed  to  second  the 
previous  question.  Some  one  objected  that  the  bill 
had  not  been  printed. 

The  fact  that  this  measure,  which  was  indeed  the  cap 
stone  of  the  great  and  much-heralded  congressional  plan, 
had  been  allowed  to  languish  for  nearly  three  months 
without  any  of  its  friends  taking  the  trouble  to  have  it 
printed,  speaks  eloquently  for  the  lack  of  interest  in  it. 
After  some  discussion  a  motion  was  made  that  it  again 
be  laid  on  the  table.  Bingham  and  a  few  of  his  faithful 
followers  called  for  a  division.  The  yeas  and  nays  were 
taken.  The  result  showed  101  yeas,  35  nays,  and  46  not 
voting.  Thus  sank  into  eternal  sleep  the  luckless  res 
toration  bill.  Of  those  who  had  framed  it  and  jauntily 
announced  it  as  an  earnest  of  Congress'  sincerity  in 
offering  the  fourteenth  amendment  to  the  rebel  states  as 
terms  for  their  readmission,  Bingham  alone1  was  willing 
to  keep  the  faith. 

Thaddeus  Stevens,  however,  was  as  honest  as  Bing 
ham.  The  latter  desired  to  go  before  the  country  on 
the  unequivocal  platform  of  the  fourteenth  amendment. 
Neither  did  Stevens  wish  to  equivocate,  however,  for  he 
was  quite  willing  to  appeal  to  the  country  on  his  recon 
struction  bill  as  the  main  issue.  He,  therefore,  on  July 
25,  called  up  that  bill  and  asked  for  a  direct  vote  on  it.2 
The  vast  majority  of  the  39th  Congress  were  as  unwill 
ing  to  commit  their  political  fortunes  to  Stevens'  radical 
plan  as  they  were  frankly  to  embrace  Bingham's  conser 
vative  one.  Consequently,  they  overwhelmingly  voted 

1  Blow,  who  doubtless  would  have  voted  with  Bingham's  thirty-five, 
was  absent. 

2  Globe,  p.  4157. 


337]  PLAN  OF  RECONSTRUCTION  337 

to  lay  it  also  on  the  table.  On  July  28,  the  last  day  of 
the  session,  Stevens  was  allowed  to  bring  up  his  bill  for 
the  purpose  of  amending  it  and  making  some  remarks 
on  it.  His  amendment  put  upon  the  President  the  duty 
of  calling  the  conventions  in  the  rebel  states,  and  hence 
the  existing  governments  were  not  recognized  even  for 
municipal  purposes.  The  old  man's  speech  was  one  of 
the  ablest  and  most  pathetic  of  his  whole  career.  After 
reading  it,  it  is  impossible  to  doubt  the  sincerity  and 
honesty  of  the  man  as  he  pleaded  so  eloquently  with  his 
colleagues  that  they  go  with  him  all  the  way  in  his  plan 
for  re-creating  the  very  social  and  industrial,  as  well  as 
political,  institutions  of  the  South.  With  tears  in  his 
eyes  he  begged  them,  should  death  overtake  his  racked 
and  diseased  frame  ere  the  time  should  again  come  for 
their  reassembling,  to  go  forward  and  perfect  and  carry 
out  the  general  principles  of  reconstruction  which  he  had 
so  frequently  expounded  to  them. 

From  the  foreeping  account  of  the  disposition  made 
of  both  BinghamV  and  Stevens'  bills  we  may  draw  the 
conclusion  that  the  great  majority  of  Republican  con 
gressmen  were,  on  the  one  hand,  unwilling  to  promise 
in  good  faith  that  they  would  require  nothing  further  of 
the  southern  states  than  the  ratification  of  the  four 
teenth  amendment,  and  on  the  other,  afraid  to  enter  the 
approaching  campaign  on  so  radical  an  issue  as  that  in 
volved  in  Stevens'  bill.  But  unless  they  should  do  some 
thing,  they  would  still  leave  themselves  open  to  the 
charge  that  they  had  no  plan  of  reconstruction;  for,  pass 
ing  the  fourteenth  amendment  alone  and  saying  nothing 
as  to  what  the  result  would  be  if  the  southern  states 
should  ratify  it,  certainly  could  not  have  been  regarded 
as  a  plan  of  reconstruction,  even  by  the  most  gullible 
and  simpleminded  people.  In  this  situation,  it  was  for- 


338  HISTORY  OF  THE  COMMITTEE  [338 

tunate  for  Congress  that  the  state  of  Tennessee  ratified 
the  fourteenth  amendment  on  July  19.'  This  event  gave 
the  politicians  the  exact  opportunity  they  desired;  for, 
by  admitting  Tennessee,  they  could  leave  the  implica 
tion  to  be  drawn,  that  should  the  other  rebel  states  do 
what  Tennessee  had  done,  they  too  would  be  admitted. 
The  radicals  were  well  aware,  however,  in  their  own 
minds,  that  this  was  exactly  what  the  other  states  would 
never  do ;  for  though  they  might  conceivably  ratify  the 
fourteenth  amendment,  no  one  thought  for  a  moment 
that  they  would  ever  evidence  the  same  loyalty  which 
Tennessee  had  shown.2 

Within  a  few  minutes  after  a  telegram  was  received  in 
Washington  by  certain  members  of  Congress  that  Ten 
nessee  had  ratified  the  amendment,  Bingham  moved3  to 
reconsider  the  vote  by  which  the  joint  resolution  for 
admitting  Tennessee  had  been  recommitted  on  March  5.* 
The  motion  was  agreed  to,  whereupon  Stevens  moved  to 
lay  the  Tennessee  resolution  on  the  table,  but  other  rad 
icals,  who  apparently  desired  to  save  themselves  the 
embarrassment  of  having  their  votes  recorded  on  that 
proposition,  moved  an  adjournment  in  order  to  accom 
plish  the  same  result.  Though  the  motion  to  adjourn  was 
defeated,  it  received  a  majority  of  the  Republican  vote, 
but  the  conservative  minority,  together  with  the  Demo 
crats,  were  sufficient  to  defeat  it.  Stevens  then  attempted 

'Dunning,  Reconstruction,  Political  and  Economic,  pp.  69,  70. 

2  See  supra,  chap,  iv,  p.  223.     I  do  not  wish  to  be  understood  as  im 
plying  that  every  Republican  who  voted  for  the  admission  of  Tennessee 
did  so  purely  from  such  sordid  motive  as  is  here  intimated.     I  do  be 
lieve,  however,  it  was  such  a  motive  that  influenced  those  that  voted 
for  Tennessee's  admission,  but  did  not  vote  for  Bingham's  restoration 
bill. 

3  Globe,  pp.  3948-3950. 

4  See  supra,  chap,  iv,  p.  256. 


339]  PLAN  OF  RECONSTRUCTION  339 

dilatory  tactics,  in  which  he  was  supported  by  Boutwell, 
Morrill,  and  sometimes  Conkling  and  about  thirty  or 
forty  other  extreme  radicals.  Bingham  moved  to  sub 
stitute  for  the  original  committee  resolution  a  new  oner 
which  simply  stated  that  whereas  Tennessee  had  ratified 
in  good  faith  the  articles  of  amendment  proposed  by 
Congress,  and  had  in  other  ways  shown  to  the  satisfac 
tion  of  Congress  her  return  to  allegiance  to  the  Govern 
ment,  laws  and  authority  of  the  United  States,  therefore, 
resolved,  that  the  state  of  Tennessee  be  declared  restored 
to  her  former  practical  relation  to  the  Union,  and  again 
was  entitled  to  be  represented.  Having  done  this,  Bing 
ham  allowed  an  adjournment. 

On  the  next  day,  the  resolution  was  again  brought 
forward  for  consideration,  and  Bingham  moved  the  pre 
vious  question.1  Boutwell  asked  that  he  be  allowed  to 
amend  the  resolution  so  that  Tennessee  could  only  be 
admitted  after  having  granted  impartial  suffrage,  but 
Bingham  refused  to  yield  for  that  purpose,  but  was  will 
ing  to  allow  Boutwell  a  few  minutes  in  which  to  make 
some  remarks  on  the  proposition. 

Of  this  opportunity  Boutwell  availed  himself.  He  said 
he  was  not  ignorant  of  the  fact  that  the  votes  of  the 
House  already  taken  foreshadowed  its  purpose  to  pass 
the  pending  joint  resolution  for  the  admission  of  Ten 
nessee.  Moreover,  he  recognized  the  reason  for  this 
action  as  being  the  approach  of  a  great  political  struggle 
in  which  his  party  associates  seemed  to  feel  that  the  pas 
sage  of  this  resolution  would  give  them  strength.  This 
he  did  not  consider  to  be  the  case,  for  he  thought  the 
country  would  be  more  likely  to  sustain  them  if  they 
pursued  a  policy  looking  towards  equal  and  exact  justice 

1  Globe,  p.  3975  et  seg. 


340  HISTORY  OF  THE  COMMITTEE  [340 

to  all  men,  than  if  they  should  make  a  compromise  of 
sacred  human  rights.  He  admitted  that  he  was  not 
troubled  as  some  seemed  to  be  by  the  news  that  the  pro 
ceedings  of  the  Tennessee  legislature  upon  the  question 
of  ratifying  the  constitutional  amendment  seemed  to  be 
irregular.1 

His  objections  then  were  not  technical,  but  vital  and 
fundamental.  In  the  first  place  the  Tennessee  govern 
ment  was  not  republican  in  form.  He  did  not  assert  that 
it  was  necessary  for  every  man  to  vote  in  order  to  have 
a  republican  form  of  government,  but  where  terms  and 
conditions  are  imposed,  they  should  be  of  such  a  reason 
able  nature  that  it  would  be  possible  for  the  great  major 
ity  of  men  to  meet  the  requirements  of  the  law.  The 
House  by  passing  this  resolution  was  recognizing  as  re 
publican  in  form  the  government  of  a  state  in  which  over 
80,000  male  citizens  were  for  themselves  and  their  pos 
terity  forever  deprived  of  taking  part.  Such  an  act 
would  be  not  only  unjust,  but  in  direct  violation  of  that 
constitutional  injunction  which  imposes  upon  Congress 
the  duty  of  guaranteeing  to  each  state  a  republican  form 
of  government. 

Though  he  believed  Congress  had  positive  power  to 
grant  the  franchise  to  the  negroes  in  the  rebellious  states, 
he  was  then  merely  appealing  to  the  negative  power  of 
Congress,  by  which  he  meant  that  Tennessee  and  the 
other  southern  states  should  be  excluded  from  represen 
tation  until  they  should  perform  this  act  of  justice  to 
the  negroes.  He  admitted  that  the  negroes  were  dis 
franchised  in  a  majority  of  the  northern  states,  and  though 

1  The  "irregular  proceedings,"  alluded  to  by  Boutwell,  were  the 
arrest  and  forcible  detention  in  their  seats  of  two  members  of  the  Ten 
nessee  assembly  whose  presence  was  required  in  order  to  constitute  a 
quorum.  See  Fertig,  Reconstruction  in  Tennessee,  pp.  77~79- 


341  ]  PLAN  OF  RECONSTRUCTION  34! 

he  regretted  the  fact,  he  was  inclined  to  excuse  it  on  the 
ground  that  the  injustice  was  not  of  such  magnitude  as 
to  endanger  the  peace  and  safety  of  the  country.  In  the 
case  of  the  rebellious  states,  however,  there  seemed  only 
the  alternative  of  the  National  Government  imposing* 
equal  suffrage  on  the  one  hand,  and  civil  and  social 
war  on  the  other.1  He  then  went  on  to  show  that 
though  Tennessee  had  an  adult  male  population  of  some 
thing  like  200,000,  only  about  60,000  could  vote,  80,000 
of  the  remainder  being  blacks  and  60,000  rebels.  He 
did  not  complain  of  the  disfranchisement  of  the  latter 
group,  but  he  did  protest  against  that  of  the  former,  and 
principally  for  the  following  amazing  reason  :  "That  the 
continuation  of  this  state  of  affairs  invited  and  rendered 
necessary  a  combination  between  the  80,000  negroes  and 
the  60,000  rebels.  The  latter  forgetting  their  past  pre 
judices,  and  the  loyal  blacks  forgetting  the  disloyalty  of 
the  rebels,  will  join  hands  and  overturn  the  government 
of  the  state." 

Boutwell's  concluding  argument  was  either  the  raving 
of  a  diseased  imagination  or  the  subtle  appeal  of  a  wily 
politician  to  the  laboring  classes  in  the  North  to  support 
negro  suffrage  for  the  South,  while  maintaining  their 
natural  predilections  in  regard  to  that  question  in  their 
own  states. 

And  what  you  are  doing-  today  for  Tennessee  you  are  invited 
hereafter  to  do  for  the  other  ten  states  of  the  South.  There 
is  only  one  alternative.  It  is  this  ;  that  the  4,000,000  colored 
people  shall  escape  from  the  tyranny  which  you  authorize  the 
southern  oligarchs  to  exercise  over  them.  And  I  bid  the  peo- 

1  This  and  the  succeeding  statements  by  Boutwell  seem  almost  puerile, 
but  they  are  only  typical  of  the  direful  prophecies  of  what  would  happen 
in  case  "  equal  and  exact  justice  "  were  not  meted  out  to  the  negroes. 


342  HISTORY  OF  THE  COMMITTEE  [342 

pie,  the  working:  people  of  the  North,  the  men  who  are  strug 
gling  for  subsistence,  to  beware  of  the  day  when  the  southern 
freedmen  shall  swarm  over  the  borders  in  quest  of  those  rights 
which  should  be  secured  to  them  in  their  native  states.  A 
just  policy  on  our  part  leaves  the  black  man  in  the  South 
where  he  will  soon  become  prosperous  and  happy.  An  unjust 
policy  forces  him  from  home  and  into  those  states  where  his 
rights  will  be  protected,  to  the  injury  of  the  black  man  and 
the  white  man  both  of  the  North  and  the  South.  Justice  and 
expediency  are  united  in  indissoluble  bonds,  and  the  men  of 
the  North  cannot  be  unjust  to  the  former  slaves  without 
themselves  suffering  the  bitter  penalty  of  transgression. 

He  then  acknowledged  that  his  opposition  to  the  ad 
mission  of  Tennessee  was  very  much  greater  because  he 
feared  that  it  would  serve  as  a  precedent  for  the  admis 
sion  of  the  other  ten  states  on  the  same  terms,  and  in 
his  opinion  it  would  be  ruinous  to  admit  those  states 
without  exacting  negro  suffrage  as  a  condition  precedent. 

As  has  been  stated  before,  Bingham  and  his  immediate 
follower,  Blow,  were  the  only  members  of  the  committee 
who  were  really  desirous  that  their  party  should  present 
a  sincere  plan  of  reconstruction  to  the  country,  and  to 
that  end  had  insisted  that  all  the  measures  reported  by 
the  committee  be  considered  and  passed  in  their  entirety. 
In  debating  the  fourteenth  amendment,  Bingham  had 
said  the  purpose  for  which  the  committee  was  organized 
would  not  be  attained  if  only  the  amendment  were  sent 
to  the  people.1  "  For  myself,"  said  he,  "  I  cannot  ap 
proach  the  discussion  of  this  great  question  which  con 
cerns  the  safety  of  all  in  the  spirit  of  a  partisan.  .  .  . 
The  want  of  the  Republic  today  is  not  a  Democratic 
party,  is  not  a  Republican  party,  is  not  any  party  save  a 

1  Globe,  p.  2541  et  seq. 


343]  PLAN  OF  RECONSTRUCTION 

party  for  the  Union,  for  the  Constitution,  for  the  su 
premacy  of  the  laws,  for  the  restoration  of  all  the  states 
to  their  political  rights  and  powers  under  such  irrevoca 
ble  guarantees  as  will  forevermore  secure  the  safety  of 
the  Republic,  the  equality  of  the  states,  and  the  equal 
rights  of  all  the  people  under  the  sanction  of  inviolable 
law." 

But,  as  we  have  seen,  he  failed  in  having  the  House 
adopt  his  restoration  bill.  He  hoped,  however,  by  hav 
ing  a  majority  of  his  party  vote  for  the  admission  of 
Tennessee,  thereby  to  commit  them,  if  not  to  the  letter, 
at  least  to  the  spirit  of  that  bill.  That  he  himself  would 
regard  the  admission  of  Tennessee  in  the  nature  of  a 
precedent  for  admitting  the  other  southern  states  under 
similar  conditions,  is  evident  from  the  general  tone  of 
his  speech  on  the  Tennessee  resolution.1  In  closing  the 
debate  on  that  resolution,  he  said  it  was  true  that  Ten 
nessee  excluded  the  negroes  from  the  exercise  of  the 
elective  franchise,  and  though  he  regretted  it,  he  was 
bound  to  say  that  since  the  majority  of  the  loyal  states 
did  the  same  thing  he  was  at  a  loss  to  understand  how 
gentlemen  could  advance  that  as  a  reason  for  denying 
Tennessee  representation  in  the  House. 

We  are  all  for  equal  and  exact  justice,  but  justice  for  all  is  not 
to  be  secured  in  a  day.  That  statesman  is  wisest  and  most 
faithful  to  duty  who  will  seize  this  opportunity  to  restore  a 
state  to  its  proper  place  in  the  Union,  and  thereby  add  one 
additional  vote  in  aid  of  the  final  ratification  of  that  amend 
ment  which  provides  for  the  protection  of  each  citizen  by  the 
combined  power  of  all.  Would  gentlemen  esteem  it  nothing- 
if  the  majority  of  the  people  of  the  other  ten  states  lately  in 
rebellion  should  imitate  the  example  of  Tennessee,  and  sol- 

1  Globe,  p.  3978  et  seq. 


344  HISTORY  OF  THE  COMMITTEE  [344 

emnly  ratify  the  amendment  declaring-  that  no  state  shall  deny 
to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws,  and  giving  Congress  power  to  enforce  this  righteous 
decree?  ...  I  tell  you  gentlemen  that  the  American  people 
will  no  more  tolerate  vassal  states  hereafter  in  this  Republic 
than  vassal  men.  If  the  majority  of  the  people  of  Ohio  have 
the  right  to  control  the  political  power  of  the  state,  the  major 
ity  of  the  people  of  Tennessee  have  the  same  right.  I  ask 
gentlemen  to  weigh  well  the  question  when  they  come  to 
vote,  whether  Tennessee  shall  be  rejected  only  because  the 
majority  exercise  the  same  power  as  to  colored  suffrage 
claimed  for  and  exercised  by  all  the  other  states?  .  .  .  One 
great  issue  has  been  finally,  and  I  trust  forever,  settled  in  the 
Republic:  the  equality  of  all  men  before  the  law.  Another 
issue  of  equal  moment  is  now  pending:  the  equality  of  the 
states.  That  is  the  issue  between  the  gentleman  [Boutwell] 
and  myself.  ...  I  say  these  states  must  be  equal  before  the 
law.  They  must  have  equal  representation  in  the  Senate,  and 
they  must  each  be  represented  according  to  their  whole  repre 
sentative  population  in  the  House.  It  matters  not  whether 
the  states  have  been  in  rebellion  or  may  have  been  struggling 
to  maintain  the  Constitution  and  the  Union,  the  rule  is  the 
same,  and  I  trust  ever  will  remain,  that  the  states  like  the 
people,  are  to  be  equal  before  the  law. 

The  vote  was  then  taken  on  the  resolution  and  re 
sulted  in  an  overwhelming  temporary  victory  for  Bing- 
ham.  Only  twelve  of  the  radicals  had  the  hardihood  to 
vote  against  the  measure,  the  others,  including  Stevens, 
voted  for  it  as  a  matter  of  political  necessity.  As  a  rule 
the  Democrats  also  voted  in  the  affirmative,  though  the 
language  of  the  preamble  was  distasteful  to  them.1 

1  Globe,  pp.  3980,  3981.  One  Democrat  said  :  "  I  spit  on  the  preamble, 
and  vote  aye  on  the  resolution."  Another  facetiously  remarked  that  he 
was  paired  with  himself  on  the  question,  since  he  opposed  the  preamble 
but  favored  the  resolution,  therefore  he  would  not  vote  at  all. 


345]  PLAN  OF  RECONSTRUCTION  345 

On  the  next  day  (July  20)  the  resolution  came  up  in 
the  Senate  but  was  immediately  referred  to  the  judiciary 
committee.1  On  July  21  it  was  reported  back  to  the 
Senate,  but  with  a  complete  change  in  the  preamble. 
This  now  recited  everything  that  had  been  done  in  Ten 
nessee  in  the  way  of  disfranchising  rebels,  etc.,  in  addi 
tion  to  the  ratification  of  the  fourteenth  amendment,  and 
then  the  resolution  declared  that  the  state  was  entitled 
to  representation  because  of  all  the  foregoing  conditions. 

From  this  the  implication  may  be  clearly  drawn  that 
the  judiciary  committee  desired  it  to  be  understood  that 
Tennessee  was  to  be  admitted  not  merely  because  she 
had  ratified  the  fourteenth  amendment  but  also  because 
of  a  great  many  other  acts  of  loyalty  which  she  had  per 
formed.  Therefore,  in  case  the  other  ten  rebel  states 
should  ratify  the  fourteenth  amendment,  it  would  not 
necessarily  follow  that  they  would  be  forthwith  admitted 
to  representation,  for  it  could  be  quite  truly  said  that 
they  had  not  shown  the  same  evidence  of  loyalty  in  other 
ways  that  Tennessee  had. 

Moreover,  the  judiciary  committee's  preamble  reas 
serted  the  positive  power  of  Congress  over  the  whole 
subject  of  reconstruction.  Sherman  objected  to  this  on 
the  ground  that  Congress  had  several  times  before  as 
serted  its  power  over  the  subject,  and  thought  that  it 
was  unwise  to  do  so  again  in  this  case,  as  it  would  only 
provoke  a  veto  from  the  President  and  thereby  cause 
additional  delay.  Trumbull,  on  the  other  hand,  believed 
that  for  Congress  not  to  assert  its  power  on  every  occa 
sion  would  be  to  surrender  its  position  because  of  execu 
tive  opposition.  To  B.  Gratz  Brown  of  Missouri,  who 
like  Boutvvell  in  the  House  maintained  that,  since  Ten- 

1  Globe,  pp.  3987-4008. 


346  HISTORY  OF  THE  COMMITTEE  [346 

nessee  denied  the  negroes  the  right  to  vote,  her  govern 
ment  was  not  republican  in  form,  Trumbull  replied  that 
if  that  were  the  case  he  ( B.  Gratz  Brown )  had  no 
business  in  the  Senate,  since  according  to  the  same  test 
Missouri's  government  was  no  more  republican  than 
that  of  Tennessee.  Fessenden,  while  protesting  that  he 
was  perfectly  willing  that  Tennessee  should  be  admitted 
before  the  fourteenth  amendment  had  become  a  part  of 
the  Constitution,  was  not  willing  to  have  the  other  ten 
states  admitted  until  it  had  been  ratified  by  three-fourths 
of  all  the  states.  Therefore  he  desired  that  either  the 
preamble  recite  the  reasons  for  making  an  exception  in  the 
case  of  Tennessee,  or  that  it  be  stricken  out  altogether,  so 
that  the  Tennessee  resolution  would  serve  as  a  precedent  for 
nothing  whatever. 

Sumner  offered  an  additional  resolution  which  was  to  the 
effect  that  Tennessee  should  not  be  admitted  until  she  had 
enfranchised  the  negroes,  but  he  could  muster  only  four 
votes  in  favor  of  his  proposition.  Cowan  declared  that  the 
restoration  of  Tennessee  was  an  abandonment  by  the  ma 
jority  of  their  ground  that  they  would  not  admit  members 
of  Congress  from  the  lately  rebellious  states  without  guar 
antees.  He  thought  that  the  whole  debate  on  the  resolution 
was  a  mere  piece  of  political  manoeuvring.  "  I  ask  in  all 
seriousness  whether  there  is  a  sane  man  in  this  body  \vho  be 
lieves  that  an  amendment  to  the  Constitution  ratified  against 
the  will  of  the  members  of  the  Tennessee  legislature,  is 
worth  in  that  state  the  paper  it  is  written  on?  The  ulti 
mate  power  is  with  the  people,  and  all  these  barriers  that 
you  attempt  to  build  up  between  the  people  and  their  ser 
vants  are  as  mere  straw  and  chaff.  Some  day  they  must 
give  way,  and  certainly  no  wise  man  wants  the  Constitu 
tion  amended  by  any  trickery  or  any  contrivance  or  any  un 
fair  means  of  that  kind." 


347]  PLAN  OF  RECONSTRUCTION  347 

The  Senate  then  passed  the  Tennessee  resolution,  in  es 
sentially  the  same  form  in  which  it  was  reported  by  the 
judiciary  committee.  On  July  23,  the  House  concurred 
in  the  amendments  made  by  the  Senate,  and  on  the  same 
day  the  resolution  was  sent  to  the  President  for  his  signa 
ture.1 

The  President  was  in  the  position  of  that  Democratic 
congressman  who  when  called  upon  to  vote  on  the  question 
declared  he  was  paired  with  himself.  The  President,  Tike 
the  congressman,  favored  the  resolution  and  therefore 
signed  it;  likewise,  he  opposed  the  preamble,  and  against 
it  sent  to  Congress  a  protest,  in  which  he  said :  ~ 

Among'  other  reasons  recited  in  the  preamble  for  the  declara" 
tions  contained  in  the  resolution,  is  the  ratification,  by  the 
state  government  of  Tennessee,  of  "the  amendment  to  the 
Constitution  of  the  United  States  abolishing  slavery,  and  also 
the  amendment  (the  I4th)  proposed  by  the  39th  Congress." 
If,  as  is  also  declared  in  the  preamble,  "  said  state  govern 
ment  can  only  be  restored  to  its  former  political  relations  in 
the  Union  by  the  consent  of  the  law-making  power  of  the 
United  States,"  it  would  really  seem  to  follow  that  the  joint 
resolution  which  at  this  late  day  has  received  the  sanction  of 
Congress,  should  have  been  passed,  approved,  and  placed  on 
the  statute  books  before  any  amendment  to  the  Constitution 
was  submitted  to  the  legislature  of  Tennessee  for  ratification. 
Otherwise  the  inference  is  plainly  deducible  that  while,  in  the 
opinion  of  Congress,  the  people  of  a  state  may  be  too  strongly 
disloyal  to  be  entitled  to  representation,  they  may  neverthe 
less,  during  the  suspension  of  their  "  former,  proper,  practical 
relations  to  the  Union,"  have  an  equally  potent  voice  with 
other  and  loyal  states  in  propositions  to  amend  the  Constitu 
tion,  upon  which  so  essentially  depend  the  stability,  prosper 
ity,  and  very  existence  of  the  nation.3 

1  Globe,  p.  4056.  *  Ibid.,  pp.  4102,  4103. 

SA11  the  Tennessee  representatives  and  senators  were  admitted  to 
their  seats  during  the  last  few  days  of  the  first  session  of  the  3Qth  Con 
gress. 


348  HISTORY  OF  THE  COMMITTEE  [348 

In  this  passage  President  Johnson  alluded  to  what  has  been 
called  the  "  vital  flaw  in  the  consistency  of  the  congres 
sional  plan."  1 

Three  of  the  four  matters  which  at  the  outset  of  this 
chapter  it  was  proposed  to  examine,  have  now  been  dis 
cussed.  No  separate  analysis  of  the  fourth — the  opinions 
of  the  politicians — seems  to  be  necessary,  as  those  opinions 
have  been  sufficiently  indicated  in  giving  an  account  of  con 
gressional  action  on  the  fourteenth  amendment,  the  re 
storation  bill,  and  the  resolution  for  admitting  Tennessee 
to  her  place  in  the  Union.  A  brief  summary  by  way  of 
answering  the  questions  suggested  in  the  first  paragraph  of 
this  chapter  may  now  be  given. 

First,  was  the  fourteenth  amendment  an  offer  to  the 
South?  The  action  of  Congress  on  the  restoration  bill 
plainly  suggests  a  negative  answer,  while  a  majority  of 
the  Republican  politicians,  if  inclined  at  all  to  regard  the 
admission  of  Tennessee  as  a  precedent,  did  so  only  on 
condition  that  the  remaining  states  would  show7  the  other 
evidences  of  loyalty  which  Tennessee  had  displayed.  On 
the  other  hand  there  certainly  were  some  Republicans  who 
really  did  mean  to  promise  to  admit  the  southern  repre 
sentatives  whenever  their  state  legislatures  should  ratify 
the  amendment.  Granting  that  these  conservatives  with  the 
addition  of  the  Democrats  were  sufficiently  numerous  to 
carry  out  the  promise,  the  second  question  remains,  was 
the  offer  magnanimous? 

In  the  opinion  of  most  northern  people  the  southern  lead 
ers  certainly  deserved  the  punishment  accorded  them  in 
the  third  section  of  the  fourteenth  amendment,  and  it  is 
doubtful  if  those  men  themselves  or  the  southern  people 
would  have  complained,  had  the  provisions  of  that  section 

1  Dunning,  Essays,  p.  117. 


349]  PLAN  OF  RECONSTRUCTION  349 

been  enacted  into  law  by  Congress.  Such  a  course  would 
have  been  just.  But  to  ask  men  who  were  conscious  of  no 
wrongdoing  to  place  a  stigma  upon  themselves,  was  not 
even  just;  it  was  the  reverse  of  magnanimous.  Moreover, 
when  southern  political  philosophy  taught  that  representa 
tion  should  be  according  to  population,  it  seems  hardly 
generous  to  have  asked  the  southern  people  to  act  the  lie 
by  ratifying  the  fourteenth  amendment,  and  virtually  say 
ing  that  they  believed  in  the  principles  of  section  2,  when, 
as  a  matter  of  fact,  they  could  not  have  done  so,  since  that 
section  was  meant  to  reduce  their  power  in  the  National 
Government  by  thirty  or  forty  per  cent.  It  must  be  re 
membered  that  the  fourteenth  amendment  was  not  in  the 
nature  of  a  treaty,  nor  of  terms  dictated  by  a  conqueror  to 
the  conquered.  The  later  Reconstruction  act  of  March  2, 
1867,  if  the  supplementary  act  of  March  23  had  never  been 
passed,  would  have  been  in  the  nature  of  "  terms  "  of 
peace,  and  as  such,  the  southern  communities,  no  longer 
recognized  as  states,  might  conceivably  have  acted  upon  it 
if  they  had  been  left  to  themselves  to  decide  the  matter. 
On  the  other  hand,  the  fact  that  the  fourteenth  amendment 
was  submitted,  for  instance,  to  Georgia  as  well  as  New 
York,  and  in  the  same  way,  could  only  mean  that  Georgia, 
theoretically  at  least,  was  recognized  as  a  state  in  the  Union, 
and  the  equal  of  New  York.  Both  states  were  to  ratify 
the  amendment  on  its  merits.  The  matter  of  political  ex 
pediency  was  not  supposed  to  be  concerned  in  the  question 
at  all. 

This  was  the  view  which  southerners  held  of  it,  and  hence 
they  believed  that  if  they  should  ratify  it,  they  would  be 
stultifying  themselves.  Therefore  all  ten  of  the  rebel  state 
legislatures  almost  unanimously  rejected  the  amendment 
during  the  winter  of  1866-67. 

Third,  was  there  any  constructive  statesmanship  in  the 


350  HISTORY  OF  THE  COMMITTEE  [350 

fourteenth  amendment?  Though  the  nationalizing  of  civil 
rights  had  already  been  accomplished  by  the  Civil  Rights 
act,  it  may  be  granted  that  under  the  circumstances  it  was 
wise  to  incorporate  the  principles  of  that  act  into  the  Con 
stitution. 

Section  2,  however,  has  proved  so  impracticable  that  its 
enforcement,  though  frequently  discussed,  has  never  been 
attempted.  Section  3  was  originally  intended  to  be  passed 
as  an  ordinary  act  of  Congress,  and  it  was  certainly  a  mis 
take  to  raise  a  temporary  punitive  bill  to  the  dignity  of  a 
constitutional  amendment.  As  for  section  4,  it  was  en 
tirely  unnecessary,  and  since  it  was  designed  to  catch  votes, 
especially  those  of  the  soldiers,  it  deserved  to  be  classified 
as  mere  political  buncombe.  Kk> 

It  seems  clear,  however,  that  in  the  opinion  of  the  ma 
jority  of  Congress  and  of  the  northern  people,  it  was  neces 
sary  to  require  additional  guarantees  from  the  southern 
states  as  to  their  future  loyalty.  Since  that  was  so,  the 
Stewart  proposition  of  universal  amnesty  and  impartial 
suffrage  ought  by  all  means  to  have  been  adopted.  It  ap 
peared  then  to  the  nonpartisan  thinking  people,  and  certainly 
appears  now,  to  have  been  the  most  statesmanlike  solution 
of  the  problem  that  was  suggested.  It  embraced  real  gen 
erosity  and  magnanimity  to  the  southern  people,  and  at  the 
same  time  made  provision  against  the  disfranchisement  of 
American  citizens  simply  because  of  their  color.  Such  a 
provision  was  just,  for  of  all  the  restrictions  that  have  ever 
been  placed  upon  the  right  to  vote,  that  of  color  is  the 
least  defensible.  This  Stewart  scheme  of  reconstruction 
bore  the  earmarks  of  real  statesmanship,  but  the  majority 
of  the  Republicans  in  Congress  were  unfortunately  not 
statesmen,  but  partisans,  and  therefore  the  proposition  was 
not  adopted. 

In  the  fourth  place,  were  the  southern  legislatures  blame- 


351]  PLAN  OF  RECONSTRUCTION  35  £ 

worthy  for  not  adopting  the  amendment?  As  already  said, 
they  could  not  have  ratified  sections  2  and  3  without  stulti 
fying  themselves.  But,  it  has  been  said,  they  should 
have  done  so  as  a  matter  of  political  expediency.  To  this 
argument  the  members  of  the  legislatures  responded  that 
even  if  they  should  so  humiliate  themselves,  they  had  no 
assurance  that  their  senators  and  representatives  would  be 
admitted  to  their  places  in  Congress.  Moreover,  the  south 
ern  people  were,  till  within  a  few  days  of  the  passage  of  the 
first  Reconstruction  act,  incredulous  that  they  would  be  re 
duced  to  a  position  in  their  own  states  inferior  to  their 
former  slaves.  After  the  1866  elections,  they  regarded  the 
fourteenth  amendment  as  inevitable,  and  negro  suffrage  as 
a  possibility,  but  it  does  not  appear  that  they  ever  seriously 
considered  that  they  would  again  be  placed  under  military 
rule,  their  state  governments  overthrown,  and  new  govern 
ments  established  in  which  apostates  to  their  cause,  northern 
adventurers  and  negroes  would  have  the  controlling  in 
fluence.  And  even  if  they  could  have  foreseen  such  a  re 
sult  of  their  refusal  to  accept  the  amendment,  it  is  doubtful 
if  fear  would  have  caused  them  to  have  acted  differently. 
The  only  time  the  southern  people  were  ever  really  fright 
ened  was  immediately  after  the  collapse  of  the  Confed 
eracy.  After  that,  they  were  successively  dismayed,  dis 
gusted,  and  angered,  or  all  three  at  the  same  time,  but  they 
never  again  were  afraid.  It  might  have  been  expedient  for 
the  southern  states  to  have  ratified  the  fourteenth  amend 
ment,  but  it  is  hardly  fair  to  consider  them  culpable  for  not 
doing  so.  Those  writers  who  attempt  to  shift  upon  the 
South  a  part  of  the  blame  for  the  evils  of  reconstruction  are 
hardly  justified.1  The  southern  people  in  the  decade  of 
1860-1870  have  a  big  load  of  blame  to  bear,  without  being 

1  Nearly  all  the  older  writers  did  so,  and  Professor  Woodburn,  in  his 
Life  of  Thaddeus  Stevens,  leaves  an  impression  of  the  same  purpose. 


352  PIISTORY  OF  THE  COMMITTEE  [352 

burdened  with  any  part  of  the  responsibility  for  the  Recon 
struction  acts. 

What  then  was  the  fourteenth  amendment  if  it  was  not  a 
plan  of  reconstruction?  An  editorial  in  the  New  York 
Herald  of  Tune  12,  1866,  gives  an  excellent  answer  to  the 
question. 

This  congressional  proposition  for  the  amendment  of  the  Con 
stitution,  as  modified  by  the  Senate,  is  an  ingeniously  con 
trived  party  platform  for  the  coming  fall  elections 

.  .  .  There  is  nothing"  here  obnoxious  to  public  opinion  in 
the  way  of  negro  suffrage,  while  the  alternative  suggested  will 
be  satisfactory  to  the  North.  There  are  no  vindictive  penal 
ties  here  against  rebels  and  traitors,  but  conditional  exclu 
sions,  which  cannot  be  resisted  successfully  before  the  people 
who  put  down  the  rebellion.  The  same  may  be  said  of  the 
propositions  touching  the  national  debt,  the  debts  of  the  re 
bellion,  and  the  four  millions  of  liberated  southern  slaves. 
Upon  this  platform  the  Republican  party  adhering  to  Con 
gress  can  carry  our  approaching  northern  state  elections  as 
they  did  last  year  if  there  be  no  other  sharply  defined  issues. 

The  Herald  was  right.  Johnson  had  no  chance  against 
Congress  before  the  people  on  the  issue  of  the  fourteenth 
amendment. 

The  Herald  recognized  that  the  radicals  did  not  regard 
the  fourteenth  amendment  as  a  finality.  It  therefore  sug 
gested  to  the  President  that  the  only  way  to  defeat  their 
schemes  of  confiscation,  negro  suffrage,  and  possibly  im 
peachment,  was  to  unite  with  those  conservatives,  like  Bing- 
ham  and  Fessenden,  who  did  consider  that  amendment  a 
finality,  advise  the  southern  states  to  ratify  it,  reorganize 
his  cabinet  with  able  men  from  the  conservative  faction  in 
the  most  important  places,  and  withdraw  the  attention  of 
the  country  from  domestic  politics  by  adopting  a  strong 


353]  PLAN  CF  RECONSTRUCTION  353 

foreign  policy,  especially  toward  France  and  England. 
Such  a  course  would  have  been  excellent  politics,  and  had 
Johnson  been  a  Disraeli  or  a  Bismarck  he  might  have  ac 
cepted  the  suggestion.  But  since  he  was  only  Andrew 
Johnson — a  first-rate  stump  speaker,  a  second-rate  states 
man,  and  a  third-rate  politician,  he  did  nothing  of  the  kind, 
and  the  Herald  owners  went  over  to  the  opposition,  as  did 
all  Republicans  who  were  not  in  some  way  connected 
with  the  administration,  and  who  had  not  already  done  so. 

In  the  political  campaign  that  ensued,  the  fourteenth 
amendment  was  spoken  of  by  Republican  politicians,  as  a 
finality  in  reconstruction,  or  a  mere  step  toward  "  complete 
justice,"  partly  according  to  the  temperament  of  the 
speaker,  but  principally  according  to  the  nature  of  the  con 
stituency  which  he  represented.  Even  radicals  in  doubtful 
states  like  New  York,  Indiana,  and  Ohio,  referred  to  that 
amendment  as  the  '  magnanimous  offer  "  of  a  generous 
people  to  the  South,  and  assured  their  constituents  that  if  it 
were  ratified  by  the  rebel  states,  they  would  surely  be  re 
stored.  On  the  other  hand,  their  brothers  in  Massachusetts 
and  New  England  generally,  and  in  radical  western  states 
like  Michigan,  Wisconsin,  and  Iowa,  paid  scant  respect  to * 
it,  and  denied  that  Congress  intended  it  to  be  a  finality.1 
Though  there  were  a  great  many  causes  contributory  to  the 
triumph  of  the  radicals  in  the  fall  elections  of  1866,  perhaps 
none  was  more  potent  than  this  automatic,  adjustable,  con 
gressional  "  plan."  It  was  indeed  an  excellent  "  plan  "  for 
winning  a  political  campaign,  but  as  a  "  plan  "  for  recon 
structing  rebel  states,  it  was  destined  soon  to  go  askew. 

1  My  authority  for  this  generalization  is  derived  from  a  careful  read 
ing  of  numerous  speeches  made  during  the  campaign,  and  reported  in 
the  New  York  newspapers. 


CHAPTER  VIII. 
THE  RECONSTRUCTION  ACT 

ON  November  15,  1866,  The  Independent,  which  more 
than  any  other  journal  expressed  the  views  of  the  ex 
treme  radicals,  said:  "This  journal,  if  it  should  call  for  a 
list,  could  get  more  names  of  Republicans  than  our  fifty- 
six  columns  could  print,  all  subscribed  to  the  solemn  de 
claration  that  the  Republican  party  stands  unpledged  to 
make  the  pending  amendment  the  basis  of  reconstruc 
tion,  but,  on  the  contrary,  is  bound  in  honor  to  a  recon 
struction  on  the  one  and  only  basis  of  equal  rights." 

In  the  preceding  chapter  the  attempt  has  been  made 
to  show  that  so  far  as  the  party  as  an  organization  was 
concerned,  the  foregoing  statement  was  correct.  Indi 
viduals,  and  even  party  conventions  in  some  of  the  states, 
had  certainly  made  the  assertion  that  the  rebel  states 
would  be  readmitted  should  they  ratify  the  fourteenth 
amendment.  It  is  possible  that  they  would  have  been 
admitted,  but  had  the  Republican  party  or  even  a  re 
spectable  minority  of  it,  been  sincerely  desirous  of  effect 
ing  restoration  on  the  basis  of  the  fourteenth  amendment 
they  certainly  could  have  done  so,  even  in  the  face  of  the 
fact  that  by  the  time  the  second  session  of  the  39th  Con 
gress  met,  it  was  evident  that  that  amendment  would  be 
rejected  by  all  the  rebel  states.1  The  fact  that  only  an 

1  When  Congress  met  on  December  3,  three  of  the  rebel  states  had 
already  rejected  the  fourteenth  amendment,  and  the  other  seven  did  so 
during  the  next  two  months.  Flack,  pp.  191-204. 

354  [354 


355]  THE  RECONSTRUCTION  ACT 

exceedingly  small  number  of  Republicans  were  sincerely 
attached  to  their  so-called  plan  of  reconstruction  made 
it  easy  for  Stevens  and  Sumner  to  take  the  lead,  and  as 
Mr.  Horace  White  has  said,  "cross  the  Rubicon  with  the 
whole  army.''1  As  Caesar  was  doubtless  glad  to  have 
an  excuse  for  crossing  the  real  Rubicon,  the  radicals  in 
the  second  session  of  the  39th  Congress  were  just  as 
happy  to  have  an  excuse  for  crossing  the  figurative  Ru 
bicon.  Their  excuse,  of  course,  was  the  failure  of  the 
rebel  states  to  ratify  the  fourteenth  amendment,  but  some 
of  their  members  did  not  need  this  provocation  in  order 
to  come  to  a  decision  in  regard  to  crossing  the  prover 
bial  stream. 

One  of  these  latter  was  Charles  Sumner.  On  December 
4,  he  gave  notice  to  the  Senate  that  at  an  early  date  he 
would  introduce  resolutions  defining  the  true  principles 
of  reconstruction,  by  which  the  illegality  of  the  existing 
governments  in  the  rebel  states,  and  the  exclusion  of 
such  states  from  representation  in  Congress  and  from 
voting  on  constitutional  amendments,  would  be  de 
clared.2 

On  the  same  day,  Broomall,  a  satellite  of  Thaddeus 
Stevens,  introduced  in  the  House  a  resolution  instructing 
the  committee  on  territories  "to  enquire,  into  the  ex 
pediency  of  reporting  a  bill  providing  territorial  govern 
ments  for  the  several  districts  of  country  within  the  juris 
diction  of  the  United  States,  formerly  occupied  by  the 
once  existing  states  of  Virginia,  North  Carolina,  etc.  and 
giving  to  all  adult  male  inhabitants,  born  within  the  lim 
its  of  the  United  States,  or  duly  naturalized,  and  not 
participants  in  the  late  rebellion,  full  and  equal  political 

1  Life  of  Lyman  Trumbull,  p.  291. 
*Globe,  2nd  sess.  3Qth  cong.,  p.  7. 


356  HISTORY  OF  THE  COMMITTEE  [356 

rights  in  such  territorial  governments."  J  The  resolution 
was  adopted  by  a  strict  party  vote.  Many  additional  res 
olutions  and  bills  looking  towards  the  enfranchisement 
of  the  negroes  and  the  dismantling  of  the  Johnson  gov 
ernments  were  introduced  during  the  first  week  of  the 
session. 

Since  the  Memphis  and  New  Orleans  riots,2  the  argu 
ment  that  the  negroes  and  the  loyal  whites  in  the  South 
were  being  terribly  persecuted  had  grown  in  popularity, 
and  it  was  urged  daily  on  the  floor  of  Congress  that  the 
governments  in  the  southern  states  should  be  placed  in 
their  control,  so  that  they  could  protect  themselves  from 
the  unrepentant  rebels.  Hardly  a  Republican  dared  lift 
his  voice  against  the  rising  enthusiasm  for  universal  negro 
suffrage  and  the  reconstruction  of  the  existing  govern 
ments  in  the  South.  When,  after  a  committee  of  the 
legislature  of  North  Carolina,  for  instance,  on  December 
6,  gave  as  one  of  the  reasons  for  rejecting  the  fourteenth 
amendment,  that  its  ratification  would  not  facilitate  the 
restoration  of  the  state,3  Spalding  of  Ohio,  a  friend  and 
follower  of  Bingham,  in  order  to  assure  the  southern 
states  that  Congress  was  sincere  in  offering  the  fourteenth 
amendment  as  a  plan  of  reconstruction,  on  December  10 
proposed  a  resolution  declaring  the  intention  of  Con 
gress  to  admit  their  senators  and  representatives  upon 
ratification  of  that  amendment.4  But  the  house  was  un 
willing  to  give  any  such  assurance,  and  Spalding's  reso 
lution  was  unceremoniously  referred  to  the  joint  com 
mittee  on  reconstruction  without  debate,  and  was  never 

*  Globe,  p.  n. 

'*  See  Rhodes,  vol.  v,  p.  6n  et  seq.    Also  see  infra,  p.  398. 
8Flack,  p.  200.     See  also  Hamilton,  Reconstruction  in  North  Caro 
lina. 

4  Globe,  p.  48. 


357]  THE  RECONSTRUCTION  ACT 

heard  of  again.  Even  Elaine,  who  at  that  time  was  con 
sidered  among  the  conservatives,  and  who  later  declared 
that  the  southern  states  would  have  been  restored  to 
their  places  in  the  Union  had  they  adopted  the  four 
teenth  amendment,1  on  December  10  declared  that  the 
people  had  pronounced  with  unmistakable  emphasis  in- 
favor  of  the  amendment  with  the  superadded  and  indis 
pensable  prerequisite  of  manhood  suffrage.2  Continu 
ing,  he  said  : 

The  objection  in  the  popular  mind  of  the  loyal  states  to  the 
constitutional  amendment  as  a  basis  of  final  adjustment  is  not 
directed  to  what  that  amendment  will  effect,  but  to  what  it  will 
not  effect.  And  among:  the  objects  of  prime  importance  which 
it  will  not  effect  is  the  absolute  protection  of  the  two  classes 
in  the  South  to  whom  the  Government  owes  the  most,  viz. 
the  loyal  white  men  and  the  loyal  black  men  .  .  .The  obli 
gation  on  the  Federal  Government  to  protect  the  loyalists  of 
the  South  is  supreme,  and  it  must  take  all  needful  means  to 
assure  that  protection.  Among-  the  most  needful  is  the  gift  of 
free  suffrage,  and  that  imist  be  guaranteed. 

When  Elaine  wrote  his  book  some  fifteen  years  after  this 
speech  was  made,  he  was  evidently  not  very  proud  of  his 
party's  reconstruction  record  and  was  anxious  to  shift 
responsiblity  for  its  blunders.  It  is  clear  from  his  own 
speech  that  his  statement  in  his  book,  if  not  entirely  un 
true,  is  at  least  questionable. 

During  the  whole  of  the  second  session  of  the  39th 
Congress  there  were  in  Washington  a  large  number  of 
southern  loyalists  who  were  telling  all  sorts  of  stories 
about  the  indignities  and  dangers  to  which  they  and  the 
colored  people  were  subjected  by  their  rebel  neighbors. 

1  Blaine,  Twenty  Years  of  Congress,  vol.  ii,  pp.  243-245. 
*  Globe,  p.  53- 


358  HISTORY  OF  THE  COMMITTEE  [358 

They  demanded  of  Congress  protection,  which  meant 
that  they,  and  not  the  rebels,  should  be  placed  in  control 
of  the  southern  governments.  In  order  to  accomplish 
the  result  which  these  loyalists  desired,  Thaddeus  Stevens, 
after  consulting  freely  with  some  of  them,  introduced  on 
December  19  a  bill  designed  for  that  purpose.1  It  was 
not  debated,  however,  until  January  1867,  by  which  time 
it  had  been  amended  to  read  as  follows  :2 
Whereas  the  eleven  states  which  lately  formed  the  government 
called  the  "  Confederate  States  of  America,"  have  forfeited  all 
their  rights  under  the  Constitution,  and  can  be  reinstated  in 
the  same  only  through  the  action  of  Congress  : 

Sec.  I.  Be  it  enacted  by  the  Senate  and  House  of  Represen 
tatives  of  the  United  States  of  America  in  Congress  assembled, 
that  the  eleven  states  lately  in  rebellion,  except  Tennessee, 
may  form  valid  state  governments  in  the  following  manner : 

Sec.  II.  And  be  it  further  enacted,  that  the  state  govern 
ments  now  existing  de  facto  though  illegally  formed  in  the 
midst  of  martial  law,  and  in  many  instances  the  constitutions 
were  adopted  under  duress,  and  not  submitted  to  the  ratifica 
tion  of  the  people,  and  therefore  not  to  be  treated  as  free  rep 
resentatives,  yet  they  are  hereby  acknowledged  as  valid  gov 
ernments  for  municipal  purposes  until  the  same  shall  be  duly 
altered  and  their  legislative  and  executive  officers  shall  be 
•recognized  as  such. 

Sec.  Ill,  And  be  it  further  enacted,  that  each  of  the  ten 
states  which  were  lately  in  rebellion,  and  have  not  been  admit 
ted  to  representation  in  Congress,  shall  hold  elections  on  the 
first  Tuesday  of  May,  1867,  to  choose  delegates  to  a  convention 
to  form  a  state  government.  The  convention  shall  consist  of 
the  same  number  of  members  as  the  most  numerous  branch 
of  the  legislature  of  said  state  before  the  rebellion.  It  shall 
meet  at  the  former  capital  of  said  state  on  the  first  Monday 

*  House  Journal,  2nd  sess.  3Qth  cong.,  p.  102. 
2  Globe,  p.  250  et  seq. 


359]  THE  RECONSTRUCTION  ACT 

in  June  of  said  year,  at  twelve  noon,  with  power  to  adjourn 
from  time  to  time,  and  shall  proceed  to  form  a  state  consti 
tution,  which  shall  be  submitted  to  the  people  at  such  a  time 
as  the  convention  shall  direct,  and  if  ratified  by  a  majority  of 
the  legal  voters  shall  be  declared  the  constitution  of  the  state. 
Congress  shall  elect  a  commission  for  each  of  said  states,  to 
consist  of  three  persons,  who  shall  elect,  or  direct  the  mode 
of  selecting,  the  election  officers  for  the  several  election  dis 
tricts,  which  districts  shall  be  the  same  as  before  the  rebellion, 
unless  altered  by  said  convention.  The  officers  shall  consist 
of  one  judge  and  two  inspectors  of  elections,  and  two  clerks  ; 
the  said  officers,  together  with  all  the  expenses  of  the  election, 
shall  be  paid  by  the  United  States,  and  said  expense  shall  be 
repaid  by  said  state  or  territory.  Each  of  said  officers  shall 
receive  five  dollars  per  day  for  the  time  actually  employed, 
Each  of  the  members  of  said  commission  shall  receive  three 
thousand  dollars  per  annum,  and  their  clerks  two  thousand 
dollars.  The  commissioners  shall  procure  all  the  necessary 
books,  stationery,  and  boxes,  and  make  all  regulations  to 
effect  the  objects  of  the  act.  The  President  of  the  United 
States  and  the  military  commander  of  the  district,  shall  furnish 
so  much  military  aid  as  the  said  commissioners  shall  deem 
necessary  to  protect  the  polls  and  keep  the  peace  at  each  of 
said  election  districts.  If  by  any  means  no  election  should 
be  held  in  any  of  the  said  late  states  on  the  day  herein  fixed, 
the  election  shall  be  held  on  the  third  Monday  of  May,  1867, 
in  the  manner  herein  prescribed.  Returns  of  all  such  elec 
tions  shall  be  made  to  the  said  commissioners,  wrhose  certifi 
cates  of  election  shall  be  prima  facie  evidence  of  the  fact. 

Sec.  IV.  And  be  it  further  enacted  that  the  persons  who 
shall  be  entitled  to  vote  at  both  of  said  elections  shall  be  as 
follows  :  all  male  citizens  above  the  age  of  twenty-one  years 
who  have  resided  one  year  in  said  state  and  ten  days  within 
the  election  district. 

Sec.  V.  And  be  it  further  enacted  that  the  word  citizen  as 
used  in  this  act,  shall  be  construed  to  mean  all  persons  (except 
Indians  not  taxed)  born  in  the  United  States  or  duly  natura- 


360  HISTORY  OF  THE  COMMITTEE  [360 

lized.  Any  male  citizen  above  the  age  of  twenty-one  years 
shall  be  competent  to  be  elected  to  act  as  delegate  to  said 
convention. 

Sec.  VI.  And  be  it  further  enacted  that  all  persons  who 
on  the  4th  day  of  March,  1861,  were  of  full  age,  who  held 
office,  either  civil  or  military,  under  the  government  called  the 
"  Confederate  States  of  America"  or  who  swore  allegiance  to 
said  government  are  hereby  declared  to  have  forfeited  their 
citizenship  and  to  have  renounced  allegiance  to  the  United 
States,  and  shall  not  be  entitled  to  exercise  the  elective  fran 
chise  or  hold  office  until  five  years  after  they  shall  have  filed 
their  intention  or  desire  to  be  reinvested  with  the  right  of 
citizenship,  and  shall  swear  allegiance  to  the  United  States 
and  renounce  allegiance  to  all  other  governments  or  pretended 
governments  ;  the  said  application  to  be  filed  and  oath  taken 
in  the  same  courts  that  by  law  are  authorized  to  naturalize 
foreigners  :  Provided,  however,  that  on  taking  the  following 
oath,  the  party  being  otherwise  qualified,  shall  be  allowed  to 
vote  and  hold  office  : 

"  I,  A.  B.,  do  solemnly  swear  that  on  the  4th  of  March, 
1864,  and  at  all  times  thereafter,  I  would  willingly  have  com 
plied  with  the  requirements  of  the  proclamation  of  the  Presi 
dent  of  the  United  States  issued  on  the  8th  of  December,  1863, 
had  a  safe  opportunity  of  so  doing  been  allowed  me ;  that  on 
the  said  4th  of  March,  1864,  and  at  all  times  thereafter,  I  was 
opposed  to  the  continuance  of  the  rebellion,  and  to  the  estab 
lishment  of  the  so-called  Confederate  government ;  and  volun 
tarily  gave  no  aid  or  encouragement  thereto,  but  earnestly 
desired  the  success  of  the  Union,  and  the  suppression  of  all 
armed  resistance  to  the  Government  of  the  United  States  ;  and 
that  I  will  henceforth  faithfully  support  the  Constitution  of  the 
United  States,  and  the  Union  of  the  states  thereunder." 

Sec.  VII.  And  be  it  further  enacted  that  no  constitution 
shall  be  presented  to  or  acted  on  by  Congress  which  denies  to 
any  citizen  any  right,  privileges,  or  immunities  which  are 
granted  to  any  other  citizen  in  the  state.  All  laws  shall  be 
impartial,  without  regard  to  language,  race  or  former  condi- 


361]  THE  RECONSTRUCTION  ACT  361 

tion.  If  the  provisions  of  this  section  should  ever  be  altered, 
repealed,  expurged,  or  in  any  way  abrogated,  this  act  shall 
become  void,  and  said  state  lose  its  right  to  be  represented  in 
Congress. 

Sec.  VIII.  And  be  it  further  enacted,  that  whenever  the 
foregoing- conditions  shall  be  complied  with,  the  citizens  of  said 
state  may  present  said  constitution  to  Congress,  and  if  the  same 
shall  be  approved  by  Congress  said  state  shall  be  declared  en 
titled  to  the  rights,  privileges,  immunities,  and  be  subject  to 
all  the  obligations  and  liabilities  of  a  state  within  the  Union. 
No  senator  or  representative  shall  be  admitted  into  either 
House  of  Congress  until  Congress  shall  have  declared  the  state 
entitled  thereto. 

The  foregoing  was  a  substitute  for  the  old  restoration 
bill  that  had  been  presented  by  the  joint  committee  at 
the  same  time  the  fourteenth  amendment  was  reported,1 
but  its  terms  resembled  much  more  closely  Stevens'  re 
construction  bill  which  he  had  introduced  on  May  28. 
His  reason  for  offering  it  as  a  substitute  for  the  original 
restoration  bill  was  to  keep  it  from  being  referred  to 
the  joint  committee  without  debate.  Under  the  rule  of 
the  House  everything  relating  to  reconstruction  was  so 
referred,  and  Bingham  made  the  point  of  order  that  this 
bill  should  go  the  same  route.  The  Speaker,  with  whom 
Stevens  had  no  doubt  conferred,  overruled  Bingham  on 
the  ground  that  it  was  a  substitute  for  a  bill  that  the 
committee  itself  had  offered,  and  could  be  recommitted 
only  by  special  vote  of  the  House.2  A  few  days  later 
Bingham  moved  that  it  be  so  disposed  of,3  but  such  dis 
position  of  it  was  exactly  what  Stevens  did  not  wish  as 
he  thought  recommitting  it  would  be  the  same  as  killing 
it  outright.  Consequently,  the  House  engaged  in  a  gen- 

1  See  supra,  p.  117. 

z  Globe,  p.  250  et  seq.  3 Ibid.,  p.  500. 


362  HISTORY  OF  THE  COMMITTEE  [362 

eral  debate  nominally  on  the  question  of  recommittal, 
but  actually  the  principal  points  made  in  the  speeches 
were  on  the  merits  of  the  bill. 

Before  Stevens'  bill  was  finally  recommitted  he  accepted 
three  amendments  to  it  which  should  be  noted  before 
proceeding  with  an  analysis  of  the  debate.  Sections  2 
and  7  were  stricken  out,1  and  a  new  section  was  added 
which  suspended  the  writ  of  habeas  corpus  in  the  ten 
rebel  states  and  placed  them  under  martial  law.2  Section 
2  was  withdrawn  because  some  radicals  believed  it  would 
weaken  their  position  if  they  should  recognize  the  John 
son  governments  even  for  municipal  purposes.  The  mar 
tial  law  clause  was  added  so  that  the  loyalists  would  be 
protected  until  the  new  governments  should  be  estab 
lished.  Section  7  was  omitted  because  it  was  generally 
agreed  on  all  sides  that  its  principles  were  untenable. 

Before  proceeding  \vith  the  discussion  of  the  speeches 
it  would  seem  necessary  to  explain  why  a  bill  which  never 
became  law  should  be  treated  at  such  length.  In  the 
first  place,  this  bill  heretofore  has  not  been  given  the 
position  justified  by  its  proportionate  importance  in  the 
development  of  congressional  reconstruction ;  and  inas 
much  as  this  is  a  more  or  less  detailed  history  of 
congressional  reconstruction,  it  would  seem  proper  to 
give  the  measure  the  emphasis  it  deserves.  Secondly, 
though  it  differs  somewhat  in  its  machinery  from  that 
instituted  in  the  supplementary  Reconstruction  act  of 
March  23,  the  practical  operation  of  the  former  would 
doubtless  have  been  about  the  same  as  that  of  the  latter. 
Though  the  consideration  of  the  March  23d  act  does  not 
fall  within  the  province  of  this  essay,  nevertheless,  it  log 
ically  belongs  in  the  category  of  the  joint  committee's  ac 
complishments,  and  a  discussion  of  what  were  practically 

1  Globe,  pp,  536,  816.  "l Ibid.,  p.  594. 


363]  THE  RECONSTRUCTION  ACT  363 

its  principles  seems  properly  to  come  within  the  scope 
of  a  history  of  that  committee. 

When  on  January  3,  Stevens'  bill  came  up  for  discus 
sion  he  made  an  energetic  speech  in  behalf  of  its  adoption.1 
He  desired  that  the  House  at  an  early  date  should  come 
to  some  conclusion  as  to  the  rebel  states.  This,  he 
argued,  was  becoming  more  and  more  necessary  every 
day;  and  the  late  decision  of  the  Supreme  Court  of  the 
United  States  had  rendered  urgent  immediate  action  by 
Congress  upon  the  question  of  the  establishment  of  gov 
ernments.  The  late  decision  to  which  Stevens  referred 
was  in  the  case  of  ex  parte  Milligan,  wherein  the  court 
held  "that  military  commissions  and  the  other  incidents 
of  martial  law  were  unconstitutional  save  where  flagrant 
war  made  the  action  of  the  ordinary  courts  impossible/'2 
This  decision  Stevens  characterized  as  more  infamous  than 
the  Dred  Scott  decision,  and  far  more  dangerous  to  the 
lives  and  liberties  of  the  loyal  men  of  the  country.  It 
unsheathed  the  dagger  of  the  assassin  and  placed  the 
knife  of  the  rebel  at  the  throat  of  every  man  who  dared 
proclaim  himself  loyal  to  the  Union.  He  declared  that 
the  rebels  were  murdering  the  loyal  whites  daily,  and 
daily  putting  in  secret  graves  not  only  hundreds  but 
thousands  of  the  colored  people  and  that  unless  Con 
gress  proceeded  at  once  to  adopt  some  means  for  their 
protection,  he  and  his  colleagues  would  be  liable  to  the 
just  censure  of  the  world  for  their  negligence  and  cow 
ardice. 

Congress  must  not  allow  the  revolution  through  which 
the  country  had  been  passing  to  subside  until  the  nation 

1  Globe,  p.  250  et  seq, 

Dunning,  Reconstruction,  p.  89.  For  a  complete  discussion  of  the 
case,  see  Essays,  p.  45  et  seg. 


364  HISTORY  OF  THE  COMMITTEE  [364 

had  been  erected  into  a  perfect  republic.  But  little  had 
been  done  toward  establishing  the  government  on  the 
true  principles  of  liberty  and  justice.  Though  the  ma 
terial  shackles  of  four  million  slaves  had  been  broken, 
they  had  not  been  given  the  privilege  of  participating  in 
the  formation  of  the  laws  of  the  government.  They  need 
ed  civil  weapons  to  enable  them  to  defend  themselves 
against  oppression  and  injustice. 

He  restated  his  theory  of  conquered  provinces,  denied 
that  there  was  any  understanding  that  if  the  amendment 
were  adopted  the  southern  states  would  be  admitted,  and 
said  in  regard  to  negro  suffrage  :  "  If  it  be  just  it  should 
not  be  denied;  if  it  be  necessary,  it  should  be  adopted;  if 
it  be  a  punishment  to  traitors,  they  deserve  it." 

On  January  16  Bingham  made  a  speech  denouncing  the 
contention  of  Stevens  and  a  great  many  other  radicals 
that  Congress  was  not  bound  by  the  terms  of  the  four 
teenth  amendment  in  making  a  final  settlement  of  the 
reconstruction  question.1  Furthermore  he  asserted  that 
a  large  number  of  Union  members,  especially  those  from 
New  York  and  Ohio,  owed  their  re-election  to  the  4Oth 
Congress  to  the  fact  that  their  state  conventions  had 
placed  the  acceptance  by  the  rebel  states  of  the  amend 
ment  as  the  final  condition  of  restoration. 

He  denounced  Stevens'  conquered  province  theory, 
and  while  he  admitted  that  Congress  could  legislate  for 
the  rebel  states  before  they  were  represented,  he  was 
certain  they  were  still  in  the  Union.  He  thought  their 
position  was  somewhat  analogous  to  that  of  Rhode 
Island  andf  North  Carolina  in  1/89;  these  two  states  were 
not  represented  in  Congress,  but  nobody  denied  their 
power  to  ratify  the  Constitution  because  of  that  fact.. 

1  Globe,  pp.  500-505. 


365]  THE  RECONSTRUCTION  ACT  365 

So  it  was  with  the  rebel  states;  they  had  the  power  to 
ratify  the  fourteenth  amendment,  and  by  doing  so  ought 
to  become  automatically  entitled  to  representation.  He 
then  attacked  the  bill  in  detail,  and  so  completely  demol 
ished  section  7,  that,  as  we  have  seen,  Stevens  was  forced 
to  withdraw  it,  even  though  he  said  it  was  dear  to  his 
heart.  Bingham  sharply  criticized  the  clause  which  had 
for  its  purpose  the  decitizenizing  of  the  rebels,  and  so 
conclusively  did  he  prove  that  Congress  had  no  power 
to  expatriate  American  citizens  that,  though  Stevens  did 
not  withdraw  the  clause,  it  found  no  place  in  the  later 
Reconstruction  acts. 

In  conclusion  he  said:  "Stand  by  the  great  amendment 
for  equal  right  and  equal  protection.  There  is  strength 
in  it;  the  strength  that  abides  in  an  inviolable  justice. 
There  is  peace  in  it;  that  peace  that  comes  of  laws  which 
are  just  to  all  and  oppressive  of  none." 

Some  one  reminded  Bingham  that  all  the  southern 
states  which  had  taken  action  on  the  amendment,  had 
rejected  it.  To  this  he  replied:  "It  does  not  follow  that 
they  will  not  yet  accept  it."  But  it  was  hardly  to  be  ex 
pected  that  Bingham's  plea  for  mercy  would  have  much 
weight,  when  the  majority  of  those  to  whom  it  was  ad 
dressed  habitually  spoke  of  the  rebels  in  terms  of  which 
the  following  is  typical: 

I  would  not  advocate  banishment  for  them,  for  I  would  not 
even  poison  the  air  of  Australian  convicts  with  their  presence 
....  It  rests  upon  us  to  decide  at  an  early  day  whether  we 
are  to  allow  rebels  to  come  and  take  their  seats  here  unwashed, 
unrepentant,  unpunished,  unpardoned,  unhung-,  (laughter)  or 
whether  we  will  heed  the  voice  of  our  friends,  fleeing  from 
the  South  for  their  lives;  whether  we  will  listen  to  the  suppli 
cation  of  four  million  black  people,  all  true  to  the  great  prin- 


366  HISTORY  OF  THE  COMMITTEE  [366 

ciples  which  we  here  seek  to  establish.     For  one  I   urge  the 
earliest  action.1 

Eldridge,  a  Democrat  of  Wisconsin,  said  it  was  idle  to 
attempt  any  resistance  to  a  caucus  measure  of  the  ma 
jority.2  It  was  appalling  to  those  who  from  early  child 
hood  had  been  accustomed  to  revere  and  love  the  Con 
stitution,  to  feel  that  it  was  in  the  keeping  of  a  party 
having  the  power  and  determination  to  destroy  it. 
Never  in  the  history  of  the  country  had  there  been  a 
measure  or  movement  fraught  with  such  fatal  and  fear 
ful  consequences  to  the  Republic  as  the  one  under  con 
sideration.  Referring  to  that  part  of  Stevens'  speech  in 
which  he  had  expressed  the  hope  that  the  revolution  be 
gun  without  the  consent  of  Congress  would  not  end  un 
til  all  the  incongruities  and  despotic  provisions  of  the 
Constitution  should  be  corrected,  Eldridge  said  there 
could  be  no  mistaking  Stevens'  object;  it  was  to  avoid 
or  get  rid  of  some  of  the  provisions  of  the  Constitution. 

Eldridge  saw  in  the  movement  that  was  then  going 
on  in  Congress,  of  which  the  pending  bill  was  only  a 
part,  three  purposes.  In  the  first  place,  there  was  a 
determination  either  to  abolish  the  Supreme  Court,  or 
at  least  circumvent  it  in  such  a  way  that  it  would  be 
powerless  to  perform  its  functions.  This  he  had  gathered 
from  the  speeches  of  the  gentlemen  of  the  majority, 
wherein  they  denounced  the  Supreme  Court  as  an  insti 
tution  as  well  as  its  recent  decisions.3  In  the  second 

'Grinnel,  Globe,  p.  537.  -Globe,  pp.  561-564. 

3  Eldridge  was  referring  to  the  Milligan,  Cummings  and  Garland  de 
cisions,  especially  the  first.  See  supra,  p.  363.  In  the  two  last-named 
cases  the  Court  held  that  a  state  and  a  Federal  test  oath,  designed  to 
exclude  rebel  clergymen  and  attorneys  from  exercising  their  functions, 
were  unconstitutional  as  ex  post  facto  laws.  See  Dunning,  Essays,  p. 
121. 


367]  THE  RECONSTRUCTION  ACT  367 

place,  he  saw  a  well  organized  effort  on  foot  which  seem 
ed  to  be  gaining  force  every  day,  either  to  depose  the 
President  entirely  or  at  least  to  make  of  his  office  a  mere 
sinecure.  The  third  and  final  purpose  of  the  majority, 
and  to  which  the  others  were  largely  contributory,  was 
to  turn  ten  sovereign  states  into  territories  or  hold  them 
as  conquered  provinces. 

He  declared  that  the  states  and  their  governments  were 
not  destroyed  by  attempted  secession.  All  the  attempts 
to  take  them  out  of  their  relations  to  the  other  states  of 
the  Union  were  failures  and  every  step  in  that  direction 
was  an  illegal  and  void  act.  The  moment  the  rebellion 
was  put  down,  the  people  of  each  state  had  the  right  to 
their  government  as  before  the  war.  On  the  part  of  the 
Confederates  the  struggle  was  to  separate  and  divide ;  on 
the  North's  part  to  prevent  separation  and  division,  and 
preserve  the  states  in  the  Union.  The  southern  people 
sought  to  avoid  the  laws  of  the  Federal  Government;  the 
northern  people  to  enforce  them. 

They  claimed  the  right  to  secede  when  they  felt  disposed ;  we 
avowed  secession  a  monstrous  heresy,  and  that  the  Union 
was  formed  in  perpetuity.  They  seized  their  arms  and  ap 
pealed  to  the  God  of  battles  for  the  justice  of  their  cause  ;  we 
accepted  the  wager  of  battle  and  pressed  them  so  closely  that 
in  desperation  they'cried,  for  the  purpose  of  rallying  their  dis 
pirited  forces,  that  we  meant  to  subjugate  them.  As  victory 
wavered  in  the  balance  we  solemly  declared:  "  That,  banishing 
all  feelings  of  mere  passion  or  resentment,  we  will  recollect 
only  our  duty  to  the  whole  country  ;  that  this  war  is  not 
waged  upon  our  part  in  any  spirit  of  oppression,  nor  for  the 
purpose  of  conquest  or  subjugation  ;  but  to  defend  and  main 
tain  the  supremacy  of  the  Constitution  and  to  preserve  the 
Union,  with  all  the  dignity,  equality,  and  rights  of  the  several 
states  unimpaired  ;  that  as  soon  as  these  objects  are  accom 
plished  the  war  ought  to  cease." 


368  HISTORY  OF  THE  COMMITTEE  [368 

Eldridge  then  declared  that  the  only  other  object  of  the 
war  which  later  developed  after  the  above  declaration 
was  made  was  the  abolition  of  slavery.  Therefore,  ac 
cording  to  the  laws  of  nations  about  which  Stevens  so 
persistently  talked,  when  the  war  was  concluded  the  only 
right  which  the  conquerors  had  over  the  conquered  was 
to  enforce  those  declared  objects  of  the  war.  As  seen 
above  these  objects  had  been  twofold:  (i)  the  main 
tenance  of  the  Union;  (2)  the  abolition  of  slavery.  Any 
scheme  of  reconstruction  that  proposed  to  include  other 
than  these  two  objects  was  contrary  both  to  the  law  of 
nations,  and  to  the  Constitution  of  the  United  States. 
It  was  unconstitutional  because  the  sovereign  powers  of 
Congress  are  named  in  the  Constitution,  and  that  docu 
ment  itself  was  created  by  a  certain  political  people,  and 
therefore  Congress  had  no  right  to  create  in  the  indi 
vidual  states  a  new  political  people.  That  is  to  say,  that 
Congress  itself  was  created  by  the  old  political  people  of 
all  the  states,  and  to  attempt  to  change  that  people  in 
the  states  was  to  invade  their  liberty,  because  the  politi 
cal  people  in  each  state  had  always  had  the  right  to  add 
to  or  detract  from  their  own  number. 

The  disorders  in  the  South,  the  frequent  riots  and  nu 
merous  murders  during  the  last  half  of  1866,  together 
with  the  ill-tempered  and  not  infrequently  lying  speeches 
by  vindictive  and  malignant  politicians  both  in  and  out  of 
Congress,  had  caused  many  thinking  men  to  fear  the 
country  was  hurrying  toward  a  renewal  of  civil  strife. 
Eldridge  was  one  of  these  and  the  following  remarks 
seem  to  show  that  he  sincerely  deprecated  the  extremely 
partisan  and  revengeful  course  that  was  being  pursued 
by  the  Republicans  : 

I  hope,  I  devoutly  pray  these  troublous  times  may  have  an  end 


369]  THE  RECONSTRUCTION  ACT  369 

without  further  sacrifice  of  fraternal  blood  ;  that  our  constitu 
tional  rights  and  liberties  may  not  be  lost  in  this  fanatical 
revolution.  Let  sectional  hatred  and  all  revenge  be  buried 
in  oblivion.  Reconciliation  is  the  only  restoration.  Malignant 
passion  has  counseled  long  enough ;  let  it  slumber.  Is  it  not 
enough  to  enslave  ten  million  people,  and  hold  them  in  a 
state  of  conquest  for  two  years?  Congress  has  an  opportunity 
such  as  no  other  body  of  men  ever  had  before,  such  as  I  fear 
it  will  never  have  again,  by  a  word  to  speak  peace,  reconcili 
ation,  and  amity  to  a  suffering  and  unhappy  country.  A 
brave  and  unarmed  people  lie  conquered  at  your  feet,  bound 
in  spirit  and  oppressed  with  many  sorrows.  They  have  sur 
rendered  all  for  which  they  contended  on  the  battle  field  and 
more  than  you  demanded  before  they  gave  to  you  their  arms. 
Let  not  the  pride  of  victory,  passion,  revenge  make  you  unjust 
and  change  your  victory  into  defeat. 

In  concluding,  he  reminded  his  opponents  that  gener 
osity  had  never  lost  the  conqueror  anything,  but  that 
cruel  and  unwise  exactions  had  often  renerved  many  an 
arm  and  renewed  many  a  struggle.  "Better  than  that  sub 
jugation  and  oppression  should  continue,  follow  the  ex 
ample  of  the  monster  Duke  of  Alva:  take  twenty  thou 
sand  to  the  block  and  be  satisfied.  Two  hundred  thous 
and  may  not  satisfy  the  people  for  wrong  and  injustice 
long  continued." 

Whatever  else  may  be  said  against  reconstruction  as 
actually  carried  out  by  Congress,  most  writers  have  con 
curred  in  the  opinion  that  it  was  a  grand  result  in  history 
that  our  great  civil  war  was  not  followed  by  any  confis 
cations  or  executions  or  any  considerable  number  of  im 
prisonments.  In  connection  with  Eldridge's  intima 
tion  that  it  would  have  been  better  to  execute  a  few  of 
the  leading  rebels  than  to  initiate  measures  of  subjuga 
tion  and  oppression  of  the  whole  mass  of  the  southern 
people,  the  question  may  properly  be  asked,  was  he  not 


370  HISTORY  OF  THE  COMMITTEE  [370 

right?  Of  course  it  is  impossible  to  give  a  satisfactory 
answer  to  the  question,  but  it  may  well  be  doubted  if 
either  the  confiscation  of  the  large  estates  in  the  South 
and  the  division  of  them  among  the  negroes,  or  the  ex 
ecution  of  a  few  of  the  leading  traitors,  or  both,  would 
have  left  such  bitterness  in  the  breasts  of  the  southern 
ers  as  was  actually  left  by  the  Reconstruction  acts  and 
their  aftermath.  It  was  certainly  true  that  at  the  close 
of  the  war  these  leading  traitors  did  not  hope  much  bet 
ter  for  themselves  than  a  halter,  and  their  countrymen 
at  that  time  would  not  have  been  greatly  disposed  to  re 
gret  such  a  fate  to  these  authors  of  all  their  woes.  As 
for  the  negro  he  would  have  been  benefited  a  great  deal 
more  by  forty  acres  and  a  mule  than  he  was  by  the  ballot, 
and  the  former  would  have  been  conceded  to  him  by 
his  white  neighbors  with  a  great  deal  more  grace  than 
was  the  latter.  Moreover,  if  he  had  forty  acres  and  a 
mule,  sooner  or  later  he  would  have  obtained  the  ballot, 
and  under  such  circumstances  as  would  have  been  of 
value  both  to  himself  and  his  country.  It  is  notorious 
that  the  negro's  disfranchisement  in  the  South  at  the 
present  time  is  not  due  nearly  so  much  to  his  color  as  to 
his  economic  dependence.  Wherever  he  is  the  possessor 
of  so  much  as  forty  acres  of  land  he  can  have  the  ballot 
if  he  wants  it.  As  Thaddeus  Stevens  at  one  time  ex 
pressed  it:  "Seek  ye  first  for  the  negro  a  little  land,  and 
all  other  things  will  be  added  unto  him." 

In  general  the  Democrats  and  those  Republicans  who 
opposed  Stevens'  bill  based  their  arguments  principally 
on  legal  and  constitutional  technicalities,  whereas  its  ad 
vocates  placed  theirs  almost  entirely  on  practical  consid 
erations.  Had  the  opponents  of  the  bill  met  their  ad 
versaries  on  their  own  ground,  it  is  apparent  that  they 
could  have  made  out  a  much  stronger  case  against  the 


371]  THE  RECONSTRUCTION  ACT 

bill  than  they  did.  The  Constitution  had  been  so 
stretched  during  the  preceding  five  or  six  years  that  men 
were  not  inclined  to  pay  much  attention  to  pleas  that 
that  sacred  document  was  being  violated.  As  for  state  in 
tegrity  and  equality  the  great  majority  of  people  in  the 
North  in  1867  regarded  South  Carolina  and  Virginia  as 
quite  different  in  relation  to  the  Union  from  Massachu 
setts  and  New  York,  and  no  amount  of  constitutional 
theorizing  could  make  them  change  their  opinion.2 

There  were  in  Congress,  however,  about  a  half  dozen 
representatives,  mostly  from  Kentucky,  who  though  of 
pro-slavery  antecedents  and  southern  sympathies,  had 
remained  steadfast  in  their  loyalty  to  the  Union.  They 
and  their  fellow  citizens  had  been  kept  in  line  by  Lin 
coln's  wise  "border  state  policy/'  and  as  one  of  them 
said,  had  the  National  Government  dared  announce  at 
the  beginning  that  the  war  was  waged  for  any  purpose 
other  than  to  save  the  Union,  it  could  not  have  recruited 
a  dozen  regiments  in  all  the  border  states.1  Though 
these  border  state  people  had  reluctantly  accepted  the 
abolition  of  slavery  as  an  accomplished  fact,  they  regarded 
the  negro  in  much  the  same  light  as  did  the  white  people 
in  the  ex-confederate  states,  and  neither  had  nor  pre 
tended  to  have  any  illusions  concerning  the  political  ca 
pacity  of  the  black  race.  They  looked  upon  this  attempt 
to  put  the  southern  state  governments  in  the  hands  of 
people  who  held  their  positions  by  reason  of  negro  suff 
rage  as  an  unmixed  evil  and  an  attack  upon  civilization 
itself.  They  met  Stevens  and  his  extreme  radical  hench 
men  on  their  own  ground  of  practical  considerations  and 
foretold  with  remarkable  accuracy  what  the  result  of 
the  radical  experiment  would  be.  Replying  to  the  stock 

1  Ward,  Globe,  appendix,  p.  61. 


372  HISTORY  OF  THE  COMMITTEE  [372 

argument  of  the  radicals  that  the  people  of  ten  rebel 
states  could  not  be  safely  trusted  with  a  voice  in  the 
Government  because  of  their  "disloyalty,"  one  of  these 
Kentuckians  said  that  the  radicals  in  employing  that  ar 
gument  overlooked  one  very  important  truth — the  people 
of  the  South  did  not  make  war  upon  our  republican  form 
of  government  nor  seek  to  destroy  it ;  they  only  sought 
to  make  two  republics  out  of  one.  They  were  then  and 
always  had  been  as  much  attached  to  the  American  sys 
tem  of  free  representative  government  as  those  persons 
who  were  abusing  them  for  disloyalty  J 

Another  Kentuckian,  Hise,  discussed  the  meaning  at 
tached  to  the  word  loyalty  by  the  majority  party.2  It 
meant  loyalty  to  them,  loyalty  to  their  dominion,  sub 
mission  to  their  will,  undisputed  recognition  of  their 
power  and  authority,  and  a  promise  for  its  perpetual  con 
tinuance.  Freedom  meant  to  make  slaves  of  the  south 
ern  people  by  placing  and  maintaining  their  state  gov 
ernments  in  the  control  of  the  negroes,  and  through 
their  agency  hold  the  southern  whites  in  submission. 
"The  negroes  are  your  friends,  and  they  and  the  felons 
and  jailbirds  are  to  be  admitted  to  the  right  of  suffrage 
and  allowed  to  hold  office  in  those  states  by  your  bill, 
should  it  be  passed  and  carried  into  execution."3  In 
addition  to  the  classes  mentioned  the  membership  of  the 
proposed  conventions  would  be  composed  of  camp  fol 
lowers,  sutlers  and  army  contractors,  all  reckless  and 

1  Ward,  Globe,  appendix,  p.  61.  2  Globe,  appendix,  pp.  66-69. 

3 Hise  had  good  reason  to  speak  of  "jailbirds  and  felons,"  for  on 
January  7,  Stevens  had  moved  to  amend  his  bill  so  as  to  disqualify  from 
voting  in  the  new  governments  only  those  criminals  convicted  of  trea 
son.  Globe,  p.  324.  In  defence  of  this  extraordinary  amendment  he 
said  that  otherwise  the  negroes  would  be  deprived  of  the  ballot  for  every 
little  insignificant  offense,  and  even  new  offenses  would  be  created  for 
the  purpose  of  disfranchising  them. 


373]  THE  RECONSTRUCTION  ACT  373 

unprincipled  adventurers  from  the  North  who  had  over 
run  the  South  to  plunder  both  the  white  man  and  the 
negro.  The  governments  of  the  southern  states  would 
be  committed  to  them,  and  by  them  would  be  sent  "loyal" 
representatives  to  Congress.  "My  God,  what  a  repre 
sentation  it  will  be  !  " 

Such  then  would  be  the  practical  effect  of  the  radical 
idea  of  loyalty,  should  Stevens'  bill  embodying  that  idea 
become  law.  As  a  matter  of  fact,  the  term  loyalty  was 
inapplicable  to  this  country.  It  signified  submission  to 
a  feudal  superior,  whereas  here  where  all  were  equal,  no 
such  thing  as  legal  or  obligatory  loyalty  to  any  man  or 
party  could  be  required  of  an  American  citizen.  All 
were  bound  to  obey  the  Constitution  and  to  submit  to 
the  laws,  but  the  rights  of  free  discussion  had  always  ex 
isted.  The  whole  superstructure  of  both  the  state  and 
Federal  governments  were  built  upon  the  declared  right 
of  the  people  to  alter,  abolish,  overturn,  and  reconstruct, 
their  political  institutions  at  pleasure. 

In  concluding  his  argument  Rise  said  the  bill  as  a 
whole  was  a  miserable  scheme  of  public  policy  to  destroy 
the  political  force  and  influence  of  the  southern  states  as 
members  of  the  Union.  And  yet  it  was  devised  by  a 
party  whose  adherents  were  loudest  in  their  professions 
of  devotion  to  free  government,  and  of  love  of  liberty. 

These  men  claim  to  be  the  special  advocates  of  human 
liberty  and  equal  rights.  They  say  they  must  put  their  friends, 
their  loyal  friends,  in  possession  of  the  state  governments, 
and  then  they  will  send  loyal  delegations  to  Congress.  Oh, 
yes,  they  will  send  loyal  delegations  !  So  this  bill,  if  exe 
cuted,  will  establish  corrupt  and  despotic  local  governments 
for  all  those  states.  It  will  place  in  office  the  most  ignorant 
and  degraded  portion  of  the  population,  who  would  rule  and 
ruin  without  honesty  or  skill  the  actual  property  holders  and 


374  HISTORY  OF  THE  COMMITTEE  [374 

native  inhabitants,  making  insecure  life,  liberty,  and  property 
Those  states  would  still  be  held  in  their  Federal  relations 
subject  to  the  most  rapacious,  fierce,  and  unrelenting  despotism 
that  ever  existed — that  of  a  vindictive  and  hostile  party  major 
ity  of  a  Congress  in  which  they  have  no  voice  or  representa~ 
tion,  and  for  that  very  reason  they  will  be  oppressed  by  that 
irresponsible  majority. 

The  last  important  speech  made  on  the  bill  was  that  of 
Henry  J.  Raymond,  who,  though  he  had  formerly  suppor 
ted  President  Johnson  and  participated  in  the  Philadel 
phia  convention,  had  not  severed  his  connection  entirely 
with  the  Republican  party.1  His  speech  is  of  interest  in 
that  he  gave  what,  at  this  distance,  seems  to  be  the  best 
interpretation  of  the  meaning  of  the  1866  elections  tha. 
was  given  by  any  speaker  in  the  House.  He  said  he  had 
concurred  in  the  policy  of  the  President,  and  was  still  of 
the  opinion  that  had  it  been  carried  out  fully  and  prompt 
ly  by  the  Republican  party,  it  would  have  restored 
peace  and  healed  to  a  great  extent  all  the  troubles  of  the 
body  politic.  Nevertheless,  he  did  not  maintain  that  the 
President's  was  the  best  policy  now  (January  24,  1867). 
He  defended  his  change  of  position  by  saying  that  his 
case  was  analogous  to  that  of  a  physican  who  may  pres 
cribe  a  gargle  for  a  sore  throat,  but  if  the  prescription 
should  be  disregarded  until  the  sore  throat  has  become 
an  inflammation  or  raging  fever,  such  physician  would 
be  wanting  in  sound  judgment  should  he,  for  the  sake 
of  consistency,  continue  to  prescribe  only  the  original 
simple  gargle.  He  therefore  would  dismiss  as  imprac 
ticable  that  method  of  settling  the  controversy  which  a 
year  earlier  he  had  so  earnestly  urged.  The  point  then 
as  to  whether  or  not  the  people  were  willing  that  the 

1  Globe,  pp.  715-720. 


THE  RECONSTRUCTION  ACT  375 

rebel  states  should  resume  their  former  position  of  pol 
itical  power  as  states  in  the  Union  without  some  security 
for  the  future,  had  been  decided  in  the  negative.  More 
over,  he  believed  that  the  people  decided  that  whatever 
settlement  of  the  reconstruction  question  should  be  fixed 
upon,  should  be  made  by  the  legislative  and  not  by  the 
executive  branch  of  the  Government.  Further  than  these 
two  points  the  people  had  not  pronounced  decisively  on 
any  specific  plan  of  reconstruction,  but  to  the  extent  that 
any  decision  had  been  made,  it  was  in  favor  of  the  con 
stitutional  amendment  as  a  basis  of  adjustment.  Cer 
tainly  they  had  not  committed  themselves  in  advance  to 
anvthing  and  everything  which  Congress  might  see  fit  to 
do. 

Raymond  was  positive,  from  a  careful  and  impartial 
scrutiny  of  the  lines  along  which  the  campaign  had  been 
waged  in  most  of  the  states,  that  the  people  had  not  in 
their  verdict  indorsed  the  cardinal  principles  of  the 
Stevens  bill.  By  cardinal  principles  he  meant  those  pro 
visions  of  the  bill  by  which  the  state  governments  in  the 
South  were  to  be  deprived  of  all  legal  authority,  the  ex 
tension  of  martial  law  over  all  that  territory,  the  suspen 
sion  of  the  privilege  of  the  writ  of  habeas  corpus,  the 
universal  enfranchisement  of  the  blacks,  and  the  partial 
disfranchisement  of  the  whites.  Two  reasons,  said  he, 
had  been  given  for  abolishing  the  existing  state  govern 
ments  :  (i)  their  origin;  (2)  their  failure  to  protect  the 
rights,  liberties,  and  property  of  their  citizens.  He  be 
lieved  they  had  originated  as  legally  as  any  such  govern 
ments  could  under  the  circumstances,  and  that  anyhow 
it  was  usual  all  over  the  world  to  recognize  de  facto  gov 
ernments,  and  respect  their  authority,  without  enquiring 
too  closely  and  rigidly  into  the  legality  of  their  origin. 
He  admitted  that  the  existing  governments  were  not  pro- 


376  HISTORY  OF  THE  COMMITTEE  [376 

tecting  the  lives  and  liberties  of  the  loyal  people  and  the 
negroes  as  fully  as  they  might.  This  he  regretted,  but 
pointed  out  that  because  of  the  confusion  in  politics,  the 
great  change  and  disorder  in  social  arrangements,  the 
almost  complete  failure  of  the  crops,  and  the  consequent 
stringency  in  finance  and  business,  such  a  condition  was 
to  be  expected,  and  it  was  really  a  wonder  that  lawless 
ness  was  not  more  prevalent  than  was  actually  the  case.1 
He  doubted  if  the  substitution  of  military  governments 
for  those  in  existence  would  work  a  very  beneficial  change, 
because  if  the  Freedmen's  Bureau  which  was  already  in 
the  South  under  the  authority  of  the  President  was  not 
keeping  order,  it  was  hardly  to  be  expected  that  the 
army  under  the  same  authority  would  do  so. 

In  conclusion  he  suggested  two  alternatives  as  a  solu 
tion  of  the  reconstruction  problem.  One  was  to  change 
the  fourteenth  amendment  by  replacing  the  punitive  sec 
tion  three  with  a  section  denying  the  right  of  secession, 
and  in  that  form  re-submit  the  amendment  for  their 
adoption.  He  believed  that  since  the  punitive  section 
had  been  the  stumbling-block  in  the  way  of  southern 
legislatures'  adopting  the  whole  amendment,  its  removal 
would  lead  them  to  reconsider  their  action.  If,  how 
ever,  the  majority  were  unwilling  to  pursue  this  course 
he  had  no  objection  to  a  resolution  proclaiming  the 
rebel  states  out  of  the  Union,  and  another  declaring  the 
amendment  officially  adopted  upon  its  ratification  by  the 
legislatures  of  three-fourths  of  the  loyal  states.  The 
southern  states  could  then  be  re-admitted  after  the 
amendment  had  become  a  part  of  the  Constitution,  and 
they  would  be  bound  by  its  provisions. 

When  Raymond  concluded  his  argument,  Stevens  rose 

1  Cf.  also  speech  by  Dodge,  Globe,  pp.  627-629. 


377]  THE  RECONSTRUCTION  ACT 

to  say  that  he  saw  such  diversity  of  opinion  on  his  side 
of  the  House  that,  if  he  did  not  change  his  mind,  he 
would  on  the  morrow  (Jan.  26)  relieve  the  House  from 
any  question  on  the  merits  of  the  bill  by  moving  to  lay 
it  on  the  table.1  Evidently  he  did  change  his  mind,  for 
he  made  no  such  motion.  On  the  26th,  however,  he 
proposed  that  if  Bingham  would  withdraw  his  motion  to 
recommit,2  he  would  throw  the  bill  into  committee  of 
the  whole  so  as  to  allow  five-minute  speeches  and 
amendments  until  the  House  should  be  satisfied  one  way 
or  the  other  as  to  the  expediency  of  passing  the  bill.5 
Ashley,  a  colleague  of  Bingham's,  urged  him  to  accept 
Stevens'  proposition.4  He  declared  all  members  of  his 
party  were  pledged  to  overthrow  the  existing  state  gov 
ernments  in  the  South,5  and  therefore  he  thought  action 
looking  toward  that  end  should  be  taken  at  once.  To  ( 
recommit  the  bill  would  mean  its  burial,  for  he  was 
certain  the  committee  could  not  agree  as  to  its  terms 
before  March  4,  when  the  39th  Congress  would  expire. 
Bingham,  however,  refused  to  withdraw  his  motion. 
The  radicals  feared  that  with  the  assistance  of  the  Demo 
crats,  Bingham  would  have  strength  enough  to  carry 
his  motion,  so  they  began  to  consider  what  ought  to  be 
done  when  the  inevitable  should  become  an  accomplished 

1  Globe,  p.  721. 

2  According  to  parliamentary  rules,  the  only  motion  relating  to  a  bill 
that  takes  precedence  of  a  motion  to  recommit  is  one  to  lay  on  the 
table ;  so  unless  Stevens  could  get  Bingham  to  withdraw  his  motion , 
the  vote  on  that  question  had  to  be  taken  before  any  other  disposition 
could  be  made  of  the  bill. 

3  Globe,  p.  781.  *ft>id.,  pp.  781-785. 

5  He  referred  to  the  unanimous  Republican  vote  by  which  Broomall's 
resolution  had  been  passed.  See  supra,  p.  355.  Bingham  and  the  con 
servatives,  however,  did  not  interpret  that  vote  to  mean  what  Ashley 
thought  it  meant. 


378  HISTORY  OF  THE  COMMITTEE  [378 

fact.  George  W.  Julian,  an  old-time  abolitionist  and  ex 
treme  radical,  in  a  speech  on  January  28,  pointed  out 
•  the  way.1  He  thought  that  Stevens  had  been  premature 
\in  urging  the  adoption  of  a  reconstruction  bill,  and  be 
lieved  that  the  first  thing  to  be  done  was  to  provide 
(protection  for  the  loyalists  and  negroes  in  the  South  by 
/establishing  there  military  governments.  After  this 
f  should  be  done  Congress  would  then  be  at  leisure  to 
provide  for  the  erection  of  permanent  civil  governments 
founded  on  the  general  principles  enunciated  in  Stevens' 
bill.  This  was  an  excellent  tactical  move  on  the  part  of 
the  radicals,  for  while  a  great  many  Republicans  were 
not  ready  for  an  out-and-out  reconstruction  bill,  the 
argument  that  something  must  be  done  for  the  protec 
tion  of  "our  friends  in  the  South"  was  sufficient  to 
cause  them  to  vote  for  a  bill  securing  that  protection  by 
establishing  military  law  there.  Paradoxically  enough 
they  were  willing  to  declare  the  Johnson  governments 
unconstitutionally  created  and  failures  in  that  they  did 
not  protect  the  lives  and  liberty  of  negroes  and  southern 
loyalists,  but  they  were  not  prepared,  to  provide,  in 
terms,  for  their  abolition.  In  fact  it  does  not  appear 
that  the  conservatives  gave  up  the  expectation  that  these 
"  illegal  governments  would  serve  as  the  nucleus  for  the 
erection  of  governments  really  legal "  until  a  disfranchis 
ing  clause  was  incorporated  into  the  first  Reconstruc 
tion  act.2 

Stevens,  however,  was  not  willing  to  accept  Julian's 
suggestion  until  he  had  tested  his  strength  both  in  the 
House  and  in  the  reconstruction  committee.  This  he 
had  an  opportunity  to  do  in  the  House  on  January  28, 

1  Globe,  appendix,  pp.  77-80. 

2  See  infra,  p.  408. 


THE  RECONSTRUCTION  ACT  379 

for  on  that  day  the  vote  was  taken  on  Bingham's  motion 
to  recommit.  Stevens  was  sustained  by  a  small  majority 
of  the  Republicans,  but  as  Bingham  had  the  support  of 
all  the  Democrats  his  motion  was  carried,  yeas  88,  nays 
65,  not  voting  38.'  So  the  first  victory  lay  with  the 
Bingham  faction,  thanks  to  the  assistance  of  the  Demo 
cratic  party.  Had  the  members  of  that  party  continued 
to  support  Bingham  as  they  should  have  done,  most  of 
Stevens'  schemes,  at  least  during  the  39th  Congress, 
would  have  come  to  nought. 

The  reconstruction  committee  to  which  the  Stevens 
bill  was  recommitted  had  been  reappointed  at  the  be 
ginning  of  the  second  session  of  the  39th  Congress. 
During  this  session  only  two  meetings  of  the  commit 
tee  were  held,  one  on  February  4th,  the  other  on  the 
6th.  At  the  first  meeting,  Stevens'  bill  was  discussed, 
but  no  conclusion  was  reached.2  Just  before  this  first 
meeting  adjourned,  Stevens  offered  a  resolution  to  the 
effect  that  the  rebel  states  be  reconstructed  on  the 
principles  laid  down  in  his  bill. 

The  committee  took  no  vote  on  this  resolution,  and 
Stevens  probably  saw  that  he  could  not  bring  a  majority 
of  the  members  to  adopt  the  principles  of  his  bill  as  a 
basis  of  future  action.  Therefore,  he  reluctantly  accepted 
the  idea  suggested  earlier  by  Julian  of  having  a  bill 
enacted  to  establish  military  governments  in  the  rebel 
states,  and  letting  reconstruction  wait  until  the  more 
radical  4Oth  Congress  should  assemble.  Having  accepted 
the  idea,  he  became  a  most  energetic  champion  of  the 
bill  that  had  for  its  purpose  the  carrying  into  effect  of 
Julian's  suggestion.  Such  a  bill  was  introduced  into  the 
Senate  on  February  4th,  by  Williams,3  who  though 

1  Globe,  p.  817.  2  See  supra,  pp.  122-124. 

3  Globe,  p.  975- 


380  HISTORY  OF  THE  COMMITTEE  [380 

formerly  of  conservative  tendencies,  had  by  this  time 
completely  identified  himself  with  the  radicals.  The  bill 
was  entitled,  "A  bill  to  provide  for  the  more  efficient 
government  of  the  insurrectionary  states,"  and  since  it 
became  the  basis  of  the  committee's  action  and  embodied 
the  military  part  of  the  Reconstruction  act  of  March  2, 
it  is  here  printed  as  introduced  by  Williams.1 

Whereas,  the  pretended  state  governments  of  the  late  so- 
called  Confederate  states  of  Virginia,  North  Carolina,  South 
Carolina,  Georgia,  Mississippi,  Alabama,  Louisiana,  Florida, 
Texas  and  Arkansas  were  set  up  without  the  authority  of  Con 
gress,  and  without  sanction  of  the  people  and  therefore  are  of 
no  constitutional  validity  ;  and  whereas  they  are  in  the  hands 
and  under  the  control  of  the  unrepentant  leaders  of  the  rebel 
lion,  and  afford  no  adequate  protection  for  life  or  property, 
but  countenance  and  encourage  lawlessness  and  crime ;  and 
whereas  it  is  necessary  that  peace  and  good  order  should  be 
enforced  in  said  so-called  states  until  loyal  and  republican 
state  governments  can  be  legally  formed. 

Sec.  I.  Therefore,  be  it  enacted  by  the  Senate  and  House 
of  Representatives  of  the  United  States  of  America,  in  Con 
gress  assembled,  that  each  of  the  so-called  states  shall  consti 
tute  a  military  district,  to  be  subject  to  the  military  authorities 
of  the  United  States  as  herein  enacted  and  prescribed  : — 

Sec.  II.  And  be  it  further  enacted  that  it  shall  be  the  duty 
of  the  General  of  the  army,  under  the  authority  of  the  Presi- 

xThe  action  of  the  committee  on  the  bill  is  meaningless  without  the 
original  text.  It  is  not  preserved  in  any  public  document,  but  fortu 
nately  it  was  printed  in  the  newspapers  on  February  5.  Since  it  was 
unusual  for  newspapers  to  print  a  bill  that  had  simply  been  introduced, 
it  is  probable  that  the  radicals  who  were  its  champions  had  it  published 
as  a  feeler  of  public  sentiment.  Most  of  the  radical  journals  that  ex 
pressed  an  opinion  thought  the  bill  was  justified  by  existing  conditions 
in  the  South.  For  the  action  of  the  committee  on  this  bill,  see  supra, 
pp.  124-129. 


38i]  THE  RECONSTRUCTION  ACT  381 

dent  of  the  United  States,  to  assign  to  the  command  of  said 
districts  an  officer  of  the  regular  army,  not  below  the  rank  of 
brigadier-general,  and  to  furnish  such  officer  with  a  military 
force  sufficient  to  enable  him  to  perform  his  duties  and  enforce 
his  authority  within  the  district  to  which  he  is  assigned. 

Sec.  3.  And  be  it  further  enacted,  that  it  shall  be  the  duty 
of  each  officer  assigned  as  aforesaid  to  protect  all  peaceable 
and  law-abiding  persons  in  their  rights  of  person  and  property, 
to  suppress  insurrection,  disorder,  and  violence,  and  to  punish, 
or  cause  to  be  punished,  all  disturbers  of  the  public  peace  and 
criminals  ;  and  to  this  end  he  may  allow  the  local  tribunals 
to  take  jurisdiction  and  to  try  offenders  ;  or  when  in  his  judg 
ment  it  may  be  necessary  for  the  trial  of  offenders  he  shall  have 
power  to  organize  military  commissions  or  tribunals  for  that 
purpose,  anything  in  the  constitutions  or  laws  of  the  so-called 
states  to  the  contrary  notwithstanding.  And  all  legislative 
or  judicial  proceedings  or  processes  to  prevent  or  control 
the  proceedings  of  said  military  tribunals,  and  all  interference 
by  said  pretended  state  governments  with  the  exercise  of 
military  authority  under  this  act  shall  be  void  and  of  no  effect. 

Sec.  4.  And  be  it  further  enacted  that  courts  and  judicial 
officers  of  the  United  States  may  issue  writs  of  habeas  corpus 
in  behalf  of  prisoners  in  military  custody  only  when  some 
commissioned  officer  on  duty  in  the  district  where  the  petition 
originates  shall  endorse  upon  said  petition  a  statement  certi 
fying  upon  honor  that  he  has  knowledge  or  information  as  to 
the  cause  and  circumstances  of  the  alleged  detention,  and  that 
he  believes  the  same  to  be  wrongfully  detained,  and  that  he 
believes  the  endorsed  petition  is  made  in  good  faith,  and  that 
justice  may  be  done,  and  not  to  hinder,  or  delay  the  punish 
ment  of  crime  ;  and  all  persons  put  under  military  arrest  by 
virtue  of  this  act  shall  be  tried  without  unnecessary  delay, 
and  no  cruel  or  unusual  punishment  shall  be  inflicted. 

Sec.  5.  And  be  it  further  enacted,  that  no  sentence  of  any 
military  tribunal  affecting  the  liberty  or  life  of  any  person 
shall  be  executed  until  it  is  approved  by  the  officer  in  com 
mand  of  the  proper  district ;  and  the  laws  and  regulations  for 


382  HISTORY  OF  THE  COMMITTEE  [382 

the  government  of  the  army  shall  not  be  affected  by  this  act, 
except  in  so  far  as  they  conflict  with  its  provisions.1 

This  bill  was  discussed  in  the  joint  committee  on  Feb 
ruary  6th,2  and  after  receiving  some  verbal  amendments, 
was  adopted  by  the  committee  and  reported  to  the  House 
by  Stevens  on  the  same  day.3  He  intimated  that  he 
would  put  it  on  its  passage  at  once,  but  waited  until 
next  day  before  opening  the  debate.4  The  Democrats 
asked  for  its  postponement  until  February  n,  in  order 
to  give  them  some  time  in  which  to  examine  its  provis 
ions.  Stevens  regretted  that,  due  to  the  lateness  of  the 
session,  he  could  not  comply  with  their  request,  but  said 
that  he  would  allow  the  minority  a  [reasonable  amount 
of  time  for  its  discussion.  By  "reasonable  amount  of 
time,"  he  evidently  meant  one  day,  for  the  concluding 
words  of  his  speech  were:  "Tomorrow,  God  willing,  I  will 
demand  the  vote." 

Several  reasons  may  be  given  for  Stevens'  anxiety  that 
the  bill  be  passed  before  the  expiration  of  the  39th  Con 
gress.  In  the  first  place  he  felt  that  it  was  necessary  to 
commit  the  members  of  his  party  to  something  more 
radical  than  the  fourteenth  amendment  as  a  final  basis  of 
reconstruction.  In  the  second  place,  just  at  the  time  the 
bill  was  introduced  in  the  House  a  conference  between 
the  President  and  the  most  noted  Union  generals  was 
being  held  in  Washington,  which  was  supposed  both  by 
the  radicals  and  the  public  press  to  presage  the  with 
drawal  of  all  the  remaining  soldiers  from  the  southern 
states.  Stevens  hoped  the  bill  would  become  law  before 
any  order  looking  toward  this  result  could  be  executed^ 
for  he  believed  it  would  be  easier  to  put  it  into  opera- 

1  New  York  Herald,  Feb.  5,  1867.  2  See  supra,  p.  124. 

•v  3  Globe,  p.  1036.  4 Ibid.,  p.  1073  et  seq. 


-583]  THE  RECONSTRUCTION  ACT  383 

tion,  if  there  were  already  in  the  South  a  nucleus  of  mil 
itary  force.  Finally,  Washington  was  besieged  with 
southern  "loyalists,"  embryonic  "scalawags  and  carpet 
baggers/'  who  were  telling  all  sorts  of  frightful  tales 
about  the  maltreatment  of  themselves  and  the  loyal 
colored  people  at  the  hands  of  the  dominant  rebels. 

It  was  these  stories  of  cruelty  and  oppression,  aug 
mented  by  partisan  despatches  of  numerous  newspaper 
correspondents,  that  truly  may  be  said  to  have  been  the 
raison  d'etre  par  excellence  of  this  military  bill.  The 
radicals  never  tired  of  recounting  these  stories  and  gen 
erally  they  had  plenty  of  testimony  at  hand  with  which 
to  prove  the  correctness  of  their  assertions.  For  instance, 
Henry  Wilson,  senator  from  Massachusetts,  carried  with 
him  at  all  times  a  handy  little  vest-pocket  notebook  in 
which  he  had  catalogued  a  list  of  all  the  rebel  murders 
and  outrages  that  had  been  committed  since  the  passage 
of  the  Civil  Rights  act  in  April  of  the  preceding  year.1 
One  of  the  opponents  of  the  bill  gave  the  following  lu 
dicrous  but  accurate  description  of  this  note  book,  and 
the  use  made  of  it  by  the  ingenious  "  Natick  cobbler :" 
"  The  senator  from  Massachusetts  has  in  his  possession  a 
little  book  for  you  to  look  upon,  in  which  there  are  cat 
alogued  all  the  enormities  done  and  committed  upon 
them  [i.  e.  the  freedmen  and  loyal  whites]  with  an  exac 
titude  worthy  of  the  most  correct  statistician.  He  can 
give  you  the  most  exact  dimensions  of  crime  in  the 
southern  states ;  can  tell  you  how  high  it  soars,  how  deep 
it  dives,  its  superficial  measure,  or  its  cubic  quantity  to 
a  hair's  breadth."2 

Some  examples  of  the  existing  conditions  in  the  South, 
presented  in  the  lurid  language  of  the  radicals,  should  be 

1  Globe,  pp.  1375-1376.  2  Cowan,  Globe,  appendix,  p.  155. 


384  HISTORY  OF  THE  COMMITTEE  [384 

given  in  order  to  understand  the  outward .  reason  for 
foisting  military  government  upon  ten  states  of  the  Union. 
Stevens,  for  instance,  declared : 

Persecution,  exile  and  murder  have  been  the  order  of  the  day 
within  all  these  territories  so  far  as  loyal  men  were  concerned, 
whether  white  or  black,  more  especially  if  they  happened  to 
be  black.  We  have  seen  these  loyal  men  flitting  about  every 
where  through  your  cities,  around  your  doors,  melancholy, 
depressed,  haggard,  like  the  ghosts  of  unburied  dead  on  this 
side  of  the  river  Styx,  and  yet  we  have  borne  it  with  exemplary 
patience.  We  have  been  deaf  to  the  groans,  the  agony,  which 
have  been  borne  to  us  by  every  southern  breeze  from  dying 
victims.  I  am  for  making  one  more  effort  to  protect  these 
loyal  men  from  the  cruelties  of  anarchy,  from  persecutions  by 
the  malignant,  from  vengeance  visited  upon  them  on  our  ac 
count.  If  we  fail  to  do  it,  we  should  be  responsible  to  the 
civilized  world  for  the  grossest  neglect  of  duty  that  ever  a  great 
nation  was  guilty  of  before  to  humanity.1 

Boutwell  was  a  past  grand  master  at  playing  up  the 
rebel  outrage  argument.  "  You  might  as  well  expect," 
said  he,  "  to  build  a  fire  in  the  depths  of  the  ocean  as 
expect  to  reconstruct  loyal  civil  governments  in  the  South 
until  you  have  broken  down  the  rebel  despotisms  which 
everywhere  hold  sway  in  that  vast  region  of  the  country. 
To-day  there  are  eight  millions  and  more  of  people,  occu 
pying  630,000  square  miles  of  territory,  who  are  writh 
ing  under  cruelties  nameless  in  their  character,  injustice 
such  as  has  not  been  permitted  to  exist  in  any  other 
country  in  modern  times." 

"What,"  asked  another  radical,  "  carried  our  election 
in  the  last  campaign  ?  It  was  the  story  of  the  southern 
refugees  told  to  the  people  of  the  North  and  West. 

1  Globe,  p.  1076.  2  Globe,  p.  1122. 


385]  THE  RECONSTRUCTION  ACT 

They  told  us  they  demanded  protection.  They  enlisted 
the  sympathy  of  northern  soldiers  by  telling  that  the 
very  guerrillas  who  hung  upon  the  skirts  of  our  army 
during  the  war  were  now  murdering  southern  soldiers 
who  fought  on  the  Union  side,  and  murdering  peaceful 
citizens,  murdering  black  men  who  were  our  allies.  We 
promised  the  people  if  we  were  indorsed  we  would  come 
back  here  and  protect  these  our  allies.  Let  us  enact  this 
bill  as  an  effectual  means  of  furnishing  the  necessary  pro 
tection  and  thus  fulfil  our  promises  to  our  constituents."  T 

Farnsworth,  who  had  succeeded  Washburne  on  the 
committee,  adduced  further  testimony  to  show  that  "un 
less  the  military  is  clothed  with  some  additional  authority 
in  the  South,  the  United  States  garrisons  and  troops  will 
have  to  be  withdrawn.  Because  if  a  soldier  is  brutally 
murdered,  and  the  military  arrest  the  offender,  he  is 
taken  from  their  hands  by  writ  of  habeas  corpus  issued 
by  the  state  courts,  and  is  almost  invariably  discharged 
without  punishment."  Farnsworth  further  stated  that 
the  bill  was  concurred  in  by  Generals  Schofield,  Thomas, 
Sickles,  Sheridan  and  other  military  men,  who  declared 
there  was  no  other  method  of  protecting  loyal  men, 
black  and  white,  in  the  South. 

Such  were  the  reasons  given  by  the  radicals  for  the 
necessity  of  this  bill.  The  extremists  like  Stevens  did 
not  attempt  to  justify  it  on  constitutional  grounds,  and 
those  moderates  who  supported  the  bill  and  who  desired 
to  salve  their  stricken  consciences  by  proving  its  consti 
tutionality,  generally  made  a  mess  of  it.  As  one  of  the 
Democrats  said  :  "  Certainly  no  man  will  insult  the  in 
telligence  of  the  American  people  by  defending  this  bill 
on  any  principle  other  JfcanJihal^Qf  the  right  of  the  con- 

1Hotchkiss,  Globe,  p.  noo. 


386  HISTORY  OF  THE  COMMITTEE  [386 

querors  ^talce^oss£ssionjof_and  control  conquered  ter 
ritory.  It  is  at  war  with  the  Constitution  and  with 
every  principle  of  free  government."  Incidentally,  he 
remarked — and  he  certainly  had  history  on  his  side — that 
it  could  not  be  defended  even  on  the  conquered  province 
theory,  for,  "  when  one  country  conquers  another  it  does 
not  undertake  to  dictate  to  the  conquered  country  what 
government  it  shall  establish."  T 

Hence  it  is  not  necessary  to  concern  ourselves  with 
a  consideration  of  the  constitutional  arguments  against 
the  bill,  and  it  certainly  is  not  worth  while  to  devote 
any  attention  to  those  pseudo-constitutional  arguments 
that  were  made  in  its  favor.  Only  two  other  matters  in 
regard  to  the  enactment  of  this  military  measure  need 
detain  us.  One  is  an  answer  to  the  grossly  exaggerated 
and  distorted  accounts  which,  as  has  already  been  illus 
trated,  the  radicals  gave  of  conditions  in  the  South. 
Secondly,  it  is  of  interest  to  understand  why  a  few  honor 
able  and  conservative  Republicans  in  both  houses  of 
Congress  made  such  heroic  efforts  so  to  amend  the  bill 
as  to  mollify  some  of  its  severest  provisions.  Their 
motives  can  be  understood  only  by  a  close  scrutiny  of 
their  words  uttered  in  debate,  and  a  detailed  analysis  of 
the  day-to-day  action  taken  on  the  bill  from  its  introduc 
tion  on  February  6,  to  its  final  passage  over  the  Presi 
dent's  veto  on  March  2. 

The  first  task  assigned  may  be  disposed  of  briefly. 
There  is  no  doubt  that  there  was  considerable  disorder 
in  the  southern  states  during  the  winter  of  1866-67,  ^ut 
to  say  that  all  the  crimes  or  even  a  majority  of  them 
were  in  the  nature  of  political  persecutions  on  the  part 
of  Confederates  against  Unionists,  black  or  white,  is 

-  -*^ 

1  Finck,  Globe,  p.  1078. 


387]  THE  RECONSTRUCTION  ACT  387 

the  rankest  absurdity;  and  the  men  who  made  such 
assertions  at  the  time  must  have  been  conscious  that 
they  were  distorting  the  facts.  In  reply  to  these  charges 
Cowan  of  Pennsylvania  gave  an  excellent  exposk  de  motit 
of  the  radicals.  He  said  the  southern  states  had  con 
stitutions  and  laws  hardly  different  from  those  of  the 
North,  and  that  the  vast  mass  of  the  people,  white  and 
black,  were  satisfied  with  them.  There  were  only  two 
reasons  assigned  by  the  radicals  for  the  abolition  of  these 
constitutions  and  laws,  and  the  substitution  of  military 
despotisms  for  them.  One  of  these  reasons  was  real,  the 
other  pretended ;  but  the  latter  was  paraded  in  front 
with  great  ostentation  in  order  to  conceal  the  former, 
which  nevertheless  irresistibly  intruded  itself  and  showed 
to  all  that  if  it  were  out  of  the  way  as  a  cause,  the  pend 
ing  measure  would  never  have  disgraced  the  halls  of 
Congress  even  as  a  bare  proposition. 

I  will  first  examine  this  show  reason  with  which  Senators 
are  endeavoring-  to  frighten  the  country,  and  upon  which  all 
the  falsehood  and  ingenuity  of  radicalism  has  been  busily  en 
gaged  for  the  last  nine  months.  It  is,  that  loyal  Union  men 
in  those  states  are  not  secure  in  their  lives  and  property,  but 
are  butchered  by  wholesale  in  great  numbers  with  as  little 
concern  as  though  they  were  dogs.  And  who,  pray,  are  those 
loyal  Union  men  who  suffer  ?  Listen,  and  be  instructed.  They 
are  negroes,  whom  it  is  alleged  the  southern  people  murder 
for  pastime,  just  as  a  naughty  boy  would  kill  flies. 

After  making  the  reference  to  Wilson's  note-book  men 
tioned  above,  Cowan  said  that  ingenious  senator  could 
do  anything  in  the  world  with  the  facts  contained  therein 
except  to  satisfy  one  that  all  of  them  were  not  cooked 
up  and  exaggerated  expressly  for  the  occasion.  These 
facts  were  testified  to  by  nobody 


388  HISTORY  OF  THE  COMMITTEE  [388 

except  agents  of  the  Freedmen's  Bureau,  cotton  thieves,  and 
other  individuals  of  an  equally  interested  stripe,  who,  like  the 
hair  worms,  only  wriggle  in  muddy  water.  These  fellows, 
male  and  female,  have  found  the  woes  of  the  negro  such  an 
easy  and  profitable  way  to  fame  and  consideration  that,  like 
the  dogs  of  Lazarus,  they  live  by  licking  his  sores  ;  and  to 
hear  and  see  them  we  would  think  the  world  was  exceedingly 
wicked,  wholly  on  account  of  the  negro  and  for  no  other  rea 
son. 

Now,  I  aver  that  all  this  is  sheer  fabrication,  and  not  a 
single  negro  has  been  killed  in  the  South  because  he  was  a 
Union  man.  If  killed  at  all  he  has  been  killed  for  some  suffi 
cient  reason,  other  than  a  political  one.  I  suppose  that  no 
one  will  pretend  that  any  respectable  man,  however  much 
opposed  to  the  Union  cause,  would  care  to  commit  murder 
upon  a  negro  because  the  latter  favored  it.  Emperors,  kings, 
and  presidents  have  been  assassinated  at  times  to  get  rid  of 
them  in  politics,  but  why  any  one  would  go  to  such  trouble 
to  so  little  purpose  in  the  case  of  a  negro  is  beyond  my  com 
prehension.  I  am  inclined  therefore,  to  think  that  in  the  first 
place  these  killings,  if  done  at  all,  are  not  done  by  any  but 
common  offenders,  and  that  the  causes  are  to  be  found  any 
where  else  than  in  the  political  sentiments  of  the  parties. 
Everybody  knows  the  tribal  antipathy  existing  between  the 
lower  sort  of  white  men  and  negroes,  and  no  one  expects  that 
it  will  not  be  the  source  of  frequent  brawls  and  quarrels,  es 
pecially  since  the  blacks  have  now  no  masters  either  to  advise 
or  protect  them.  In  these  conflicts  the  weaker  will  go  to  the 
wall,  not  because  he  is  loyal  or  disloyal,  but  because  he  is  in 
ferior  in  every  way  to  his  antagonists.  And  the  false  and 
foolish  notion  of  equality  which  you  have  lately  put  into  the 
head  of  the  negro  amounts  only  to  a  standing  invitation  to 
every  white  man  to  break  that  head  as  soon  as  it  insults  him. 

This  measure  is  intended  for  a  very  different  purpose  than 
that  of  providing  for  a  better  administration  of  the  civil  and 
criminal  laws  in  the  South.  It  is  not  intended  to  make  life  and 
property  more  secure  ;  but  it  is  designed  to  overturn  the  state 


389]  THE  RECONSTRUCTION  ACT  389 

governments  there,  to  substitute  in  their  stead  an  irresponsi 
ble  military  despotism,  and  in  the  trouble  and  confusion  which 
will  follow  the  authors  hope  and  expect  that  new  governments 
may  be  formed  upon  the  basis  of  political  equality  between 
the  two  different  races  which  inhabit  there,  and  that  there 
may  be  a  chance  when  all  is  finished  that  the  political  power  of 
the  South  may  be  either  paralyzed  or  transferred  to  the  radi 
cals,  and  that  in  the  meantime  no  representatives  from  there 
are  to  be  allowed  to  enter  either  House  of  Congress.1 

In  order  to  offer  something  to  the  country  to  give  color  to 
this  monstrous  project,  you  affect  great  concern  for  the  negro 
in  another  direction,  viz.  his  political  status  for  the  future. 
You  first  assert  his  utter  and  entire  helplessness  in  the  pre 
sence  of  the  whites  ;  that  he  cannot  defend  himself  against 
wholesale  murder,  even  with  the  Freedmen's  Bureau  and  its 
military  force  at  his  elbow ;  that  he  has  not  sense  enough  to 
contract  for  himself  without  the  guardianship  of  the  Govern 
ment  officials ;  that  in  short  he  is  unfit  to  cope  in  the  battle  of 
life  as  a  freeman,  that  he  must  be  coddled  and  nursed,  educated 
and  instructed  for  a  year  or  so,  until  he  bursts  his  savage 
cocoon,  when  it  is  supposed  he  will  be  able  to  soar  away  on 
painted  pinion,  a  full-grown  radical  bombyx.  Only  a  year 
or  so  at  farthest  is  allowed  to  convert  these  semi-barbarian 
slaves  into  honest  and  capable  patriots,  whose  wisdom  and 
virtue  are  to  underlie  the  revised  and  improved  governments 
of  ten  states  of  this  Union.  Only  a  year  or  so  is  all  you  allow 
for  this  wonderful  transformation.  Then  will  the  day  of  Pen 
tecost  be  fully  come,  and  three  or  four  million  negroes  are  to 
be  changed,  not  by  the  apostolic  teaching  of  divinely-inspired 
men,  but  by  virtue  of  amended  constitutions  and  the  pedagogic 
efforts  of  strong-minded  school-marms. 

The  foregoing  were  not  the  words  of  a  copperhead  or 
southern  sympathizer,  but  of  a  man  who  had  been  elec- 

1  If  Cowan  could  have  foreseen  the  supplementary  Reconstruction  act 
of  March  23,  he  could  have  made  this  point  much  stronger. 


390  HISTORY  OF  THE  COMMITTEE  [390 

ted  as  a  Republican.  He  had  been  a  consistent  suppor 
ter  of  the  war  and  of  Lincoln's  policies,  including  his  re 
construction  policy,  and  simply  adhered  to  it  after 
Johnson  became  President.  Hence  the  words  of  Cowan 
are  entitled  to  a  great  deal  of  respect  and  credence,  and 
when  taken  in  connection  with  the  known  fanaticism  and 
extreme  partisanship  of  the  radicals,  seem  to  prove  a 
complete  refutation  of  the  radical  contention  that  the  ex- 
confederates  were  butchering  the  negroes  simply  because 
of  their  loyalty  to  the  Union.  As  Elijah  Hise  pointed 
out  in  a  speech  made  on  this  military  bill,  the  radicals 
did  not  appear  to  understand  that  in  the  southern  states 
all  the  property  holders,  all  the  traders  and  merchants 
who  had  capital,  including  all  the  best  and  most  reputable 
citizens,  were  engaged  in  the  movement  for  secession.1 
Since  the  ex-rebels  were  the  substantial  men  of  the 
community,  they  were  the  people  who  were  naturally 
interested  in  maintaining  good  government,  upholding 
law  and  order,  and  securing  the  enjoyment  of  regu 
lated  liberty.  It  was  absurd  to  say  that  these  men  who 
had  a  deep  stake  in  the  well-being  and  prosperity  of  their 
country  and  who  controlled  the  state  governments,  were 
endangering  the  life,  liberty,  or  property  of  the  people 
by  unlawful  misrule.  On  the  other  hand,  they  were  the 
natural  persons  to  whom  Congress  should  have  looked 
for  the  preservation  of  law  and  order,  and  the  prevention 
of  crime  and  anarchy.  Hise,  like  Cowan,  saw  that  the 
scheme  of  the  radicals  was  to  spread  broadcast  in  the 
North  false  reports  of  southern  crime  and  cruelty,  in  or 
der  to  have  the  people  of  that  section  sustain  them  in 
their  plot  to  destroy  the  existing  governments,  and  erect 
in  their  places  "loyal"  governments  in  the  control  of  ex- 

1  Globe,  appendix,  p.  96  et  seq. 


391]  THE  RECONSTRUCTION  ACT  391 

slaves,  southern  vagabonds,  and  northern  adventurers. 
''And  when  this  is  done,"  said  Hise,  "I  suppose  the 
southern  states  will  be  placed  in  their  constitutional  re 
lations  and  allowed  representation  in  the  two  houses  of 
Congress,  provided  they  send  true  adherents  of  the  rad 
ical  leaders  and  supporters  of  their  measures." 

Not  all  the  Republicans  in  Congress,  however,  were  in 
the  category  of  those  who  would  turn  the  ex-rebel  state 
governments  over  to  the  negroes,  the  scalawags  and  the 
carpet-baggers.  Had  the  southern  legislatures  ratified 
the  fourteenth  amendment,  it  is  possible  the  conservatives 
might  have  succeeded  in  thwarting  the  schemes  of  the 
radicals  by  admitting  the  southern  representatives  and  thus 
have  brought  reconstruction  to  an  end.  The  failure  of  the 
southern  states  to  ratify  that  amendment,  however,  took 
the  ground  from  under  their  feet.  When  they  pleaded 
for  the  Republican  party  to  stand  by  the  fourteenth  amend 
ment  as  a  final  adjustment,  the  radicals  cried  that  their 
plea  was  childish,  for  as  Garfield  expressed  it,  had  not 
"  the  last  one  of  the  sinful  ten  [rebel  states]  with  scorn 
and  contempt,  flung  back  into  our  teeth,  the  magnanimous 
offer  of  a  generous  nation?"1  Such  was  the  fact,  and  it 
placed  Garfield's  colleague,  Bingham,  and  the  other  hon 
est  conservatives  in  a  most  difficult  position.  Though  at 
first,  when  the  southern  states,  one  after  another,  began 
to  reject  the  fourteenth  amendment,  these  conservatives 
were  inclined  to  say,  "  Wait,  those  states  will  yet  accept 
it,"  they  soon  became  fully  conscious  they  were  in  the 
midst  of  a  revolution,  and  as  revolutions  neither  go  back 
ward  nor  stand  still,  they  soon  saw  it  was  ineffectual  to 
cry,  "  Wait !"  Neither  could  they  maintain  that  the  four 
teenth  amendment  was  already  adopted,  having  been 

1  Globe,  p.  1103. 


392 


HISTORY  OF  THE  COMMITTEE 


ratified  by  three-fourths  of  the  loyal  states  ;  for  according 
to  their  theory  the  ten  rebel  states  were  still  states  in  the 
Union,  and  must  be  counted  in  order  to  make  valid  the 
adoption  of  a  constitutional  amendment.  In  combating 
a  bill  that  practically  had  for  its  purpose  the  dismantling 
of  those  states,  they  were  inevitably  carried  toward  the 
position  of  Andrew  Johnson  and  the  Democrats,  that 
since  those  ten  states  were  in  the  Union,  they  should  be 
represented  in  Congress,  for  the  Constitution  plainly  says 
that  no  state  shall  be  deprived  of  equal  representation  in 
the  Senate  without  its  own  consent.  The  direction  in 
which  Bingham  and  the  moderate  Republicans  were  tend 
ing,  Stevens  was  not  slow  to  see  and  point  out.  "  If  this 
Congress  so  decides,"  said  he,  "  it  will  give  me  great 
pleasure  to  join  the  io  triumphe  of  the  gentleman  from 
Ohio  in  leading  this  House,  possibly  by  forbidden  paths, 
into  the  sheepfold  or  goatfold  of  the  President."  *  To  be 
accused  of  "  Andy-Johnsonism  "  was  enough  to  make 
the  moderate  Republicans  wince  ;  for  so  unpopular  had 
Johnson  become,  and  so  completely  had  he  been  repudia 
ted  by  the  people  in  the  fall  elections,  that  no  Republican, 
who  did  not  wish  to  become  a  political  martyr,  would  will 
ingly  allow  himself  to  be  classed  as  a  Johnson  supporter. 
Hence  the  moderates  could  not  do  what  a  year  earlier 
they  might  have  done  with  impunity  —  i.  e.y  accept  the 
President's  policy  and  allow  the  southern  representatives 
to  take  their  seats  —  for  then  the  majority  of  Republican 
voters  would  not  have  objected  to  that  course,  while 
now  they  would  have  considered  it  little  short  of  trea 
son.  Indeed,  even  had  no  direful  political  consequences 
threatened  to  attend  such  a  course,  the  conservatives 
certainly  had  no  intention  of  abandoning  the  ground  of 

1  Globe,  p.  1214. 


393]  THE  RECONSTRUCTION  ACT  393 

the  fourteenth  amendment  and  going  back  to  the  posi 
tion  of  the  President.  In  assisting  the  radicals  to  rally 
the  people  against  Johnson,  however,  the  conservatives 
had  helped  to  raise  a  storm  which  they  expected  to  stop 
with  the  bulwark  of  the  fourteenth  amendment.  But 
that  bulwark  had  fallen  when  the  southern  states  failed 
to  support  it  by  ratifying  the  amendment,  and  now  the 
storm  was  rapidly  passing  beyond  their  control.  The 
story  of  the  enactment  of  the  first  Reconstruction  bill  is 
the  story  of  how  moderate  Republicans  lost  the  last  rem 
nant  of  their  former  power  in  directing  the  course  of 
reconstruction. 

As  we  have  seen,  Stevens  introduced  the  bill  into  the 
House  on  February  6,  1867.  The  debate  continued  until 
late  in  the  afternoon  of  the  next  day,  when  Bingham  rose 
to  make  his  contribution  to  the  discussion.1  The  tenor 
of  his  opening  remarks  showed  that  he  was  bursting  to 
express  his  resentment  because  of  a  violent  and  uncalled- 
for  attack  made  on  him  by  Stevens  on  January  28.  On 
that  day  Stevens  had  said  among  other  things  that  no 
one  could  believe  anything  that  Bingham  might  say.2 
Bingham  was  a  man  of  delicate  sense  of  honor  and  was 
deeply  offended  that  his  veracity  should  thus  be  publicly 
questioned.  So  when  he  began  to  speak  on  February  7, 
it  was  evident  that  he  intended  to  take  the  opportunity 
to  reply  in  kind  to  Stevens'  derogatory  remarks  of  the 
week  before.  The  relations  of  the  two  factions  of  the 
party  in  the  House  were  becoming  exceedingly  strained, 
and  representatives  who  desired  above  all  things  that 
party  harmony  should  be  preserved  feared  that  if  Bing 
ham  should  make  a  speech  in  his  existing  state  of  irrita 
tion  the  breach  would  be  widened.  Therefore,  a  Repub- 

1  Globe,  p.  1079  et  seq.  *  Globe,  p.  816. 


394  HISTORY  OF  THE  COMMITTEE  [394 

lican  member  asked  that  he  yield  so  that  a  motion  might 
be  made  for  a  recess  until  after  dinner.  Bingham  angrily 
replied  that  he  would  not  yield ;  he  knew  all  about  the 
gag  and  would  not  submit  to  it.  The  Republicans  be 
came  frightened,  and  knowing  of  no  other  way  to  pre 
vent  Bingham's  expressing  himself,  made  a  stampede  for 
the  door  in  such  numbers  that  within  two  minutes  the 
House  was  almost  deserted.  The  Speaker,  who  doubt 
less  was  a  party  to  the  plot,  immediately  declared  that 
since  there  was  no  quorum  a  motion  to  adjourn  was 
in  order.  Such  a  motion  was  immediately  made  and 
carried,  and  Bingham's  remarks  were  postponed  until 
after  his  associates  had  had  an  opportunity  to  assuage 
his  temper. 

Before  the  recess  it  was  evident  that  Bingham  intended 
to  attack  the  bill  in  toto.  So  well,  however,  had  the 
radical  disseminators  of  southern  outrages  done  their 
work,  that  it  is  not  at  all  likely  that  even  with  the  as 
sistance  of  the  Democrats,  Bingham  could  have  rallied 
enough  Republicans  to  his  side  to  accomplish  the  de 
feat  of  the  bill.  Evidently  this  had  been  made  clear  to 
him  during  the  two  hours  recess  by  those  Republicans 
who  had  formerly  supported  him  in  his  contest  with 
Stevens  on  the  question  of  recommitting  the  latter's 
original  reconstruction  bill.  Therefore,  when  Bingham 
renewed  his  speech,  it  is  clear  that  he  had  decided  to 
change  his  tactics.  He  did  not  say  whether  he  would 
vote  for  or  against  the  bill,  but  declared  that  if  it  was  to 
become  law,  he  wanted  to  make  it  subject  to  as  little  ob 
jection  as  possible.  He  therefore  moved  to  strike  out 
the  preamble  and  insert  in  its  place  the  one  he  had 
offered  in  committee.1  Moreover,  he  wanted  to  strike 

1  See  supra,  p.  125. 


395]  THE  RECONSTRUCTION  ACT  395 

out  the  term  so-called  everywhere  it  occurred  before  the 
word  states,  as  he  had  so  persistently  tried  to  have  done 
in  committee.  In  the  fourth  section  he  proposed  to  give 
to  the  United  States  courts  the  power  without  any  ex 
ception  of  issuing  writs  of  habeas  corpus  for  persons  in 
dictable  and  punishable  according  to  Federal  law.  This 
amendment  he  offered  in  order  to  remove  any  cause  for 
conflict  between  the  military  and  civil  authorities  of  the 
United  States. 

Speaking  of  the  reason  why  he  desired  to  amend  the 
preamble,  Bingham  said  he  wished  thereby  to  notify  in 
the  most  solemn  form  the  men  who  constituted  the 
majority  of  the  people  in  the  ten  lately  insurgent  states, 
and  who  themselves  were  in  open,  armed  rebellion,  that 
all  they  had  to  do,  in  order  to  get  rid  of  military  gov 
ernment,  was  to  present  to  the  Congress  of  the  United 
States  a  republican  form  of  state  government  in  accord 
with  the  letter  and  spirit  of  the  Constitution  and  laws  of 
the  United  States,  together  with  a  ratification  of  the 
pending  amendment.  When  men  in  those  states  had 
fulfilled  their  obligations  by  assenting  to  these  conditions, 
he  wished  them  clearly  to  understand  that  then  their 
states  would  be  restored  at  once  to  their  constitutional 
relations. 

The  amendments  offered  by  Bingham,  together  with 
his  speech,  show  that  instead  of  having  the  preamble  an 
nounce  that  new  •"  governments,  republican  in  form," 
were  to  be  established  in  the  South,  he  wanted  to  have 
it  announce  that  the  military  rule  which  even  he  had  at 
last  been  brought  to  accept  as  a  temporary  expedient, 
would  continue  only  until  the  existing  state  governments 
should  accept  the  fourteenth  amendment.  Though  such 
a  course  would  have  been  in  keeping  with  the  party  plat 
forms  of  1866  and  doubtless  would  have  met  the  expec- 


396  HISTORY  OF  THE  COMMITTEE  [396 

tations  of  a  large  majority  of  the  northern  people,  the 
incessant  ding-donging  that  had  been  going  on  for  a  year 
or  more  in  Congress  to  the  effect  that  the  Johnson  gov 
ernments  were  illegal,  and  which  had  become  more  per 
sistent  as  the  resentment  against  the  President  increased, 
had  so  permeated  the  brains  of  the  Republican  members 
of  the  House,  that  Bingham  soon  saw  that  he  could  not 
obtain  a  very  large  number  of  followers  to  pursue  with 
him  the  course  outlined  in  this  speech  of  February  7. 
Consequently  in  a  few  days  he  found  himself  under  the 
necessity  of  again  changing  his  tactics. 

In  the  meantime,  Stevens  was  making  a  desperate  effort 
to  get  the  bill  passed  without  amendment.  He  regarded 
it  merely  as  a  temporary  police  measure  designed  to  pro 
tect  the  negroes  and  loyal  whites  until  a  definite  plan  of 
reconstruction  could  be  worked  out  in  detail.  This  task 
he  desired  to  leave  to  the  more  radical  4Oth  Congress 
which  by  special  act  of  the  39th  had  been  called  to  meet 
immediately  upon  the  expiration  of  the  term  of  the  latter 
on  March  4,  1867.  "  Stevens  then  hoped,"  says  his  bio 
grapher,  Professor  Woodburn,1  "to  secure  the  disfran- 
chisement  of  the  rebels,  the  enfranchisement  of  the 
negroes,  and  a  moderate  plan  of  confiscation,  and  then 
to  delay  the  restoration  of  the  southern  states  to  their 
privileges  within  the  Union  until  they  were  well  ready 
to  participate  in  governing  the  country." 

In  accordance  with  this  plan,  and  true  to  his  promise 
to  allow  only  one  day's  debate  on  the  bill,  Stevens  on  Feb 
ruary  8  moved  the  previous  question.2  His  motion  was 
not  sustained,  however,  as  Bingham,  leading  the  moderate 
Republicans,  was  able,  with  the  assistance  of  the  Demo- 

1  Life  of  Thaddeus  Stevens,  p.  477. 

2  Globe,  p.  1104. 


397]  THE  RECONSTRUCTION  ACT  397 

crats,  to  inflict  a  decisive  defeat  upon  his  rival,  the  vote 
on  the  motion  being  62  to  81.  For  a  week  following 
this  vote,  the  bill  was  debated  in  the  House,  and  numer 
ous  amendments  were  proposed,  only  one  of  which  need 
concern  us  here.  This  was  an  additional  section  offered 
by  James  G.  Elaine  on  Feb.  12.*  It  read  as  follows  : 

Sec — And  be  it  further  enacted  that  when  the  constitutional 
amendment  proposed  as  article  14  by  the  3Qth  Congress  shall 
have  become  a  part  of  the  Constitution  of  the  United  States 
by  the  ratification  of  three-fourths  of  the  states  now  represen 
ted  in  Congress,  and  when  any  one  of  the  late  so-called  Con 
federate  states  shall  have  given  its  assent  to  the  same  and 
conformed  its  constitution  and  laws  thereto  in  all  respects  ; 
and  when  it  shall  have  provided  by  its  constitution  that 
the  elective  franchise  shall  be  enjoyed  equally  and  impartially 
by  all  male  citizens  of  the  United  States,  twenty-one  years  old 
and  upward,  without  regard  to  race,  color,  or  previous  con 
dition  of  servitude,  except  such  as  may  be  disfranchised  for 
participating  in  the  late  rebellion ;  and  when  said  constitution 
shall  have  been  submitted  to  the  voters  of  said  state,  as  thus 
defined,  for  ratification  or  rejection ;  and  when  the  constitu 
tion,  if  ratified  by  the  popular  vote,  shall  have  been  submitted 
to  Congress  for  examination  and  approval,  said  state  shall, 
if  its  constitution  be  approved  by  Congress,  be  declared  enti 
tled  to  representation  in  Congress  and  senators  and  represent 
atives  shall  be  admitted  therefrom  on  their  taking  the  oath 
prescribed  by  law,  and  then  and  thereafter  the  preceding  sec 
tions  of  this  bill  shall  be  inoperative  in  said  state. 

Of  course  Elaine's  purpose  in  offering  this  amendment 
was  to  forestall  Stevens'  scheme  of  allowing  reconstruc 
tion  to  go  over  to  the  4Oth  Congress,  when,  as  every 
body  thought,  a  much  more  radical  plan  could  be  carried 
through.  Elaine  therefore  desired,  before  the  House 

1  Globe,  pp.  1182,  1183. 


398  HISTORY  OF  THE  COMMITTEE  [398 

should  become  madly  rampant  in  its  radicalism,  to  have 
incorporated  in  this  military  bill  this  section  enunciating 
the  principles  upon  which  the  southern  states  might  ex 
pect  to  be  finally  reconstructed,  and  thereby  commit  his 
party  associates  to  this  comparatively  conservative  plan. 
In  this  purpose  Elaine  had  the  support  of  about  fifty  or 
sixty  conservative  Republicans,  including  Bingham,  who 
by  this  time  had  evidently  given  up  the  idea  that  the 
southern  states  upon  ratifying  the  fourteenth  amendment 
might  be  readmitted  without  having  new  governments 
created  within  their  boundaries. 

On  the  same  day  (Feb.  12)  that  Elaine  offered  this 
amendment,  a  bill  was  passed  through  the  House  pro 
viding  a  territorial  form  of  government  for  the  state  of 
Louisiana.1  It  had  been  drawn  up  by  a  special  committee 
that  had  been  appointed  to  investigate  the  New  Orleans 
riot  of  July  30,  1866. 2  It  provided  for  a  governor  and 
nine  councilors  in  whom  all  executive  and  legislative 
power  was  vested.  These  officers  were  to  be  appointed 
by  the  President,  by  and  with  the  advice  of  the  Senate, 
and  all  were  required  to  be  men  of  unquestioned  loyalty. 
Moreover,  the  bill  was  a  regular  enabling  act  and  created 
the  machinery  with  which  the  governor  and  his  council 
ors  were  required  to  erect  a  new  state  government  in 
which  the  right  of  suffrage  was  to  be  exercised  by  all 
loyal  men  without  regard  to  color.  By  virtue  of  the 
fact  that  this  special  committee  was  privileged  to  report 
at  any  time,  this  radical  bill  had  been  slipped  in  for  con- 

1  Globe,  p.  1175. 

2  This  was  a  riot  between  ex-Confederates  on  the  one  hand  and  ne 
groes  and  loyal  whites  on  the  other.     It  resulted  in  more  than  one  hun 
dred  and  fifty  persons,  mostly  negroes,  being  killed  or  seriously  wounded, 
and  proved  conclusively  to  the  minds  of  the  radicals  that  the  existing 
government  was  either  incompetent  or  unwilling  to  protect  the  lives  of 
loyal  citizens.     See  Rhodes,  vol.  v,  p.  6n  et  seq. 


THE  RECONSTRUCTION  ACT  399 

sideration  by  the  House  on  February  n,  and  took  pre 
cedence  of  the  military  bill.     Strangely  enough,  it  had 
been  supported  by  radical  and  conservative  Republicans 
alike,  though  Stevens  appeared  chagrined  that  it  should 
take  precedence  of  his  military  bill.     The  radicals  sup 
ported  it  because  it  embodied  about  all  that  they  desired 
should  be  contained  in  a  general  reconstruction  bill  for 
the  other  nine  states,  and  did  not  object  to  its  being  con 
sidered  a  precedent  for  that  purpose.     Two  reasons  may 
be  suggested  to  explain  the  support  given  to  it  by  the 
conservatives.     In  the  first  place,  nearly  everybody  felt 
that  Louisiana,  the  state  where  disorder  had  been  most 
prevalent,  should  be  marked  for  some  special  punishment. 
In  the  second  place,  the  conservatives  seemed  to  believe, 
that  by  holding  Louisiana  up  as  an  example  they  might 
force  the  other  states  to  agree  to  the  fourteenth  amend 
ment  and  comply  with  the  other  conditions  laid  down  in 
the  Elaine  amendment.1     These  things  the  conservatives 
had  reason  to  hope  the  rebel  states  would  do,  especially 
as  they  would  be  under  duress  of  military  law  from  which 
they  could  expect  to  be  rid  only  by  yielding.     In  case 
they  should  yield,  the  conservatives  believed  they  could 
thwart  the  scheme  of   the  radicals  of  passing  a   supple 
mentary  reconstruction  act  along  the  lines  of  the  Louisi 
ana  bill.     Had  the  conservative  plan  been  carried  through, 
even  though  it  did  contemplate  negro  suffrage,  it  would 
have  given  the  native  whites,  at  least  in  most  of  the  states, 
more  than  an  even  chance  with  the  carpet-baggers,  scal 
awags,  and  negroes,  of  maintaining   the  control  of  the 
machinery  of  the  government.     And  after  all  it  was  not 
negro  suffrage   per  se  that  proved  such   a  curse  to  the 
South,  but  the  turning-over  of  the  state  governments  to 

1  The  New  York  Herald,  speaking  editorially  on  February  12  and  13, 
1867,  corroborates  this  view  of  the  conservatives'  motives. 


400  HISTORY  OF  THE  COMMITTEE  [4OO 

political  adventurers.  These  adventurers  could  not  have 
obtained  control  of  these  governments  through  negro 
suffrage  alone,  but  needed  the  assistance  of  at  least  par 
tial  white  disfranchisement  as  well  as  northern  bayonets. 
By  the  conservative  plan  it  was  not  proposed  to  render 
them  these  two  additional  aids. 

The  speech  of  Bingham  on  February  13  proves  the 
foregoing  hypothesis.1  He  favored  the  formation  of 
governments  in  the  southern  states  by  the  voluntary 
action  of  the  people  themselves.  He  did  not  oppose  the 
military  bill  provided  the  Blaine  amendment  was  added 
and  provided  further  that  the  whole  were  passed  in  spirit 
if  not  in  fact  as  a  mere  addendum  to  the  old  Restoration 
bill  of  the  joint  committee.  That  is  to  say,  he  wanted 
it  thoroughly  understood  that  the  military  government 
would  be  terminated  just  so  soon  as  the  existing  state 
governments  should  ratify  the  fourteenth  amendment  and 
establish  impartial  suffrage.  "Has  it,"  asked  he,  "in 
deed  come  to  this,  that  gentlemen  are  not  content  to 
secure  to  the  emancipated  citizens  of  the  Republic  the 
elective  franchise  and  all  the  rights  of  citizens  and  men? 
Do  you  insist  that  by  act  of  Congress  they  be  secured, 
even  where  they  are  in  a  minority,  in  the  whole  political 
power  of  the  state?  Will  you  by  further  legislation  com 
pel  the  majority  of  white  citizens  to  be  their  subjects  for 
life?" 

Though  it  is  true  that  none  of  the  other  conservative 
Republicans  gave  quite  so  frank  an  expose  of  their  mo 
tives  as  did  Bingham,  they  certainly  understood  what  he 
desired,  and  by  their  votes  indicated  that  they  subscribed 
to  his  policy.  Moreover,  from  the  bitterness  with  which 
the  radicals  assailed  the  Blaine  amendment,  it  is  clear 

1  Globe,  p.  1210  et  seq. 


THE  RECONSTRUCTION  ACT  4OI 

that  they  too  understood  the  motives  of  its  sponsors. 
Stevens  attacked  the  proposition  and  said  that  its  authors 
were  unmistakably  leading  the  House  toward  "  universal 
amnesty  and  universal  Andy-Johnsonism." J  That  the 
conservatives  were  thwarted  in  their  plans,  however,  was 
due  not  so  much  to  the  radicals  as  to  the  Democrats. 
The  shortsightedness  of  those  gentlemen  and  the  petti 
ness  of  the  little  game  of  politics  which  they  attempted 
to  play  are  pitiable.  In  apportioning  the  blame  for  the 
mistakes  of  reconstruction,  the  thirty-five  or  forty  per 
sons  who  called  themselves  Democrats  should  not  be 
overlooked.  Nowhere  does  their  imbecility  appear  in  a 
worse  light  than  in  their  votes  on  this  Reconstruction 
bill. 

On  February  13,  Stevens,  by  means  of  the  previous 
question,  made  a  second  attempt  to  force  his  bill  through 
the  House  in  substantially  the  same  form  in  which  a 
week  earlier  he  had  reported  it  from  the  committee. 
However,  the  previous  question  was  not  seconded,  and 
the  Democrats  were  in  great  glee,  for  they  had  learned 
nothing  by  experience.  It  had  been  so  long  since  they 
themselves  had  tasted  the  sweets  of  office  that  they  seem 
to  have  forgotten  that  the  cohesive  power  of  public 
plunder  is  nearly  always  sufficient,  sooner  or  later,  to 
bind  together  the  factions  of  a  majority  party.  Hence 
they  thought  that  if  they  could  prevent  any  amendments 
being  made  to  the  bill,  its  entire  defeat  would  be  ac 
complished.  Therefore,  instead  of  rendering  whatever 
assistance  they  could  to  the  conservatives  in  their  effort 
to  mollify  the  provisions  of  the  bill,  they  devoted  them 
selves  successfully  to  accomplishing  exactly  the  opposite 
result. 

After  the  House  had  refused  to  second  the  previous 

1  Globe,  p.  1213  et  seq. 


402  HISTORY  OF  THE  COMMITTEE  [4O2 

question  on  Stevens'  motion  that  the  bill  be  passed  un- 
amended,  it  looked  as  though  the  Elaine  amendment 
certainly  would  be  adopted.  It  was  then  that  Bingham 
made  his  plea  that  with  the  military  bill,  the  House  send 
a  proclamation  to  the  southern  people  that  they  would 
be  kept  under  the  protection  of  the  Federal  army  not  a 
day  after  they  should  adopt  the  fourteenth  amendment 
and  provide  for  impartial  suffrage.1  When  Bingham 
completed  his  speech,  Blaine  moved  that  the  bill  be  sent 
to  the  judiciary  committee  with  instructions  that  it  be 
reported  back  to  the  House  immediately  with  his 
amendment  added.2  On  this  motion  he  called  the  pre 
vious  question  and  was  sustained  by  a  bare  majority  of 
7.  An  analysis  of  the  vote  on  the  previous  question 
shows  that  85  Republicans  voted  yea,  and  78  extreme 
radicals  and  Democrats  voted  nay.  It  is  not  correct  to 
conclude  that  all  of  these  85  Republicans  who  voted  in 
the  affirmative  on  seconding  the  previous  question  were 
so  moderate  in  their  views  as  Bingham.  Some  of  them 
and  even  Blaine  himself  supported  the  amendment  for 
the  sole  reason  that  they  thought  it  bad  politics  to  pass 
a  military  bill,  which  carried  with  it  no  provision  for 
terminating  its  operation.3  But  whatever  their  motives, 
it  is  seen  that  when  this  first  vote  was  taken  there  were 
enough  Republicans  supporting  the  amendment  to  defeat 
the  coalition  between  extreme  radicals  and  Democrats. 
Their  margin  was  exceedingly  narrow,  however,  and  be- 

1  Globe,  p.  1210  et  seq.  *  Globe,  p.  1213. 

*  Globe,  pp.  1182,  1183.  This  inference  is  easily  drawn  from  the  gen 
eral  tenor  of  Elaine's  speech  when  he  offered  the  amendment.  Blaine 
definitely  stated  that  there  was  nothing  in  the  amendment  to  prevent 
Congress  passing  enabling  acts  for  the  other  nine  rebel  states  similar  to 
the  one  just  passed  for  Louisiana.  However,  he  said  that  if  these  nine 
states  would  immediately  comply  with  the  conditions  named  in  his 
amendment,  such  enabling  acts  would  not  be  necessarj'. 


403]  THE  RECONSTRUCTION  ACT  403 

fore  the  vote  on  the  main  question  could  be  taken, 
Stevens  obtained  recognition  from  the  chair  and,  con 
trary  to  the  rules  of  the  House,  made  a  thirty-minute 
speech  against  the  Elaine  amendment.1  In  his  frantic 
appeal  to  his  party  associates,  whom  he  saw  in  a  majority 
of  nearly  two  to  one  against  him,  he  made  use  of  every 
weapon  known  to  the  art  of  the  party  manager. 

With  a  voice  choking  with  tears,  and  in  a  spirit  of 
inexpressible  sadness  and  grief,  he  reproached  Congress 
for  sitting  idle  for  months  and,  though  the  South  had 
been  bleeding  at  every  pore,  doing  nothing  to  protect 
the  loyal  people  there  in  their  persons,  liberty  or  property. 

Those  of  us  who  have  health  and  spirits,  have  been  sitting:  here 
enjoying  ourselves,  while  the  South  is  covered  all  over  with 
anarchy,  murder,  and  rapine.  Though  we  have  declared  that 
the  President  has  usurped  authority,  and  that 'what  he  has 
done  is  void  in  the  face  of  law,  that  Congress  alone  has  power 
to  erect  governments  and  protect  the  people ;  yet  we  sit  by 
and  move  no  hand  and  raise  no  voice  to  effect  what  we  declare 
to  be  the  duty  of  Congress. 

He  then  turned  his  great  powers  of  sarcasm  and  ridi 
cule  against  Bingham  and  reproached  him  with  having 
caused  the  defeat  of  his  previous  bill.  He  said  he  had 
labored  upon  that  bill  in  conjunction  with  loyal  men  from 
the  South,  had  altered  and  rewritten  it  several  times.  He 
had  warned  the  House  that  if  that  bill  should  go  back  to 
the  committee  it  must  die. 

Our  vigorous  friend  from  Ohio  assured  us  that  it  would 
come  back  from  the  committee  fresh  and  blooming,  but  it  has 
not  come  and  I  have  been  forced  to  accept  a  position  that  I 
could  not  help.  This  bill  that  now  comes  in  lieu  of  it  en- 

1  Globe,  p.  1213. 


404  HISTORY  OF  THE  COMMITTEE  [404 

counters  the  same  obstacles  in  precisely  the  same  spirit.  There 
are  in  it  some  words  difficult  to  spell ;  adverbs  are  improperly 
placed,  gentleman  object  to  its  particles  and  its  articles,  and 
my  friend  from  Ohio  declared  this  morning  with  proper  exal 
tation  that  he  had  succeeded  in  passing  through  the  House  a 
bill  which  uses  the  word  states  precisely  as  the  President  uses 
it  in  his  theory  as  to  the  right  of  admission  of  those  claiming 
to  represent  the  rebel  states. 

It  was  in  this  speech  that  Stevens  denounced  the  Elaine 
amendment  as  a  step  toward  "  universal  amnesty  and 
universal  Andy-Johnsonism,"  as  it  let  in  a  vast  number 
of  rebels  and  shut  out  nobody. 

Having  appealed  to  duty,  to  prejudice,  and  incident 
ally  to  party  interest,  he  made  a  final  appeal  to  the  vanity 
of  his  party  associates. 

If  sir,  I  ought  presume  upon  my  age,  without  claiming  any  of 
the  wisdom  of  Nestor,  I  would  suggest  to  the  young  gentle 
men  around  me  that  the  deeds  of  this  burning  crisis,  of  this 
solemn  day,  of  this  thrilling  moment,  will  cast  their  shadows 
far  into  the  future,  and  will  make  their  impress  upon  the  annals 
of  our  history,  and  that  we  shall  appear  upon  the  bright  pages 
of  that  history,  just  in  so  far  as  we  cordially,  without  bickering, 
without  small  criticisms,  lend  our  aid  to  promote  the  great 
cause  of  humanity  and  universal  liberty. 

To  those  of  his  associates  who  seemed  to  fear  that  the 
bill  was  quite  as  likely  to  promote  oppression  as  liberty, 
and  to  those  members  who  pleaded  for  forgiveness  and 
mercy  toward  a  conquered  foe,  Stevens  said  : 

The  forgiveness  of  the  gospel  refers  to  private  offences,  where 
men  can  forgive  their  enemies  and  smother  their  feeling  of 
revenge  without  injury  to  anybody.  But  that  has  nothing  to 
do  with  municipal  punishment,  with  political  sanction  of  po 
litical  crimes.  When  nations  pass  sentence  and  decree  con- 


405]  THE  RECONSTRUCTION  ACT  405 

fiscation  for  crimes  unrepented  there  is  no  question  of  malig 
nity.  When  the  judge  sentences  the  convict  he  has  no 
animosity.  When  the  hangman  executes  the  culprit  he  rather 
pities  than  hates  him.  Cruelty  does  not  belong  to  their 
vocabulary.  Gentlemen  mistake,  therefore,  when  they  make 
these  appeals  to  us  in  the  name  of  humanity.  They,  sir,  who 
while  preaching  this  doctrine  are  hugging  and  caressing  those 
whose  hands  are  red  with  the  blood  of  our  and  their  murdered 
kinsmen,  are  covering  themselves  with  indelible  stains  which 
all  the  waters  of  the  Nile  cannot  wash  out. 

This  speech  may  be  placed  as  one  of  the  few  ever  de 
livered  in  Congress  that  have  resulted  in  the  changing  of 
votes.  As  a  direct  result  of  it,  sixteen  Republicans,  who 
had  voted  with  Elaine  and  Bingham  on  seconding  the 
previous  question,  now  voted  with  Stevens  against  the 
motion  to  commit,  so  that  motion  was  lost  by  a  vote  of 
69  to  94.*  Nearly  all  the  Democrats  again  voted  with 
Stevens.  Had  only  thirteen  of  them  been  able  to  see  that 
their  real  interest  lay  on  the  Bingham  side,  the  Blaine 
amendment  would  have  been  adopted  in  spite  of  Stevens' 
speech.  As  has  already  been  said,  the  Democrats  had 
hoped  that  by  preventing  the  adoption  of  that  amend 
ment,  a  sufficient  number  of  moderate  Republicans  would 
vote  with  them  against  the  pure  military  bill  to  insure  its 
defeat.  In  this  expectation  they  were  sadly  mistaken, 
for  only  twenty  Republicans  had  sufficient  independence 
to  break  away  from  their  party  and  vote  against  the  pas 
sage  of  the  bill,  though  all  of  them  knew  it  was  uncon 
stitutional,  and  at  least  a  majority  of  them  did  not  con 
sider  it  called  for  by  the  necessity  of  the  case. 

Both  the  Louisiana  and  the  Reconstruction  bills  came 
up  for  consideration  in  the  Senate  on  February  14. 2  The 

1  Globe,  p.  1215.  *  Globe,  pp.  1302-1304. 


HISTORY  OF  THE  COMMITTEE  [406 

Republican  members  of  that  body  were  not  agreed 
among  themselves  as  to  which  bill  should  be  taken  up 
first,  and  a  running  debate  lasting  over  an  hour  was 
engaged  in  before  the  question  was  decided.  Some  of 
the  radicals  wanted  to  amend  the  Louisiana  bill  so  that 
its  provisions  would  be  applicable  to  all  the  rebel  states, 
combine  it  with  the  military  bill,  and  in  that  form  pass 
both  bills  at  the  same  time.  This  was  objected  to  by 
the  conservatives,  and  Fessenden  said  that  if  the  Elaine 
amendment  were  added  to  the  military  bill  no  additional 
legislation  concerning  reconstruction  would  seem  to  be 
necessary,  at  least  for  the  present.  After  Fessenden  had 
spoken,  Williams,  who,  as  we  have  seen,  was  the  author 
of  the  bill  in  the  first  place,  and  who  now  took  charge 
of  it  in  the  Senate,  offered  to  amend  it  by  adding  the 
Elaine  proposition.  With  this  understanding,  it  was  de 
cided  by  a  close  vote  to  proceed  with  the  consideration 
of  the  military  bill.  However,  since  the  usual  time  for 
the  adjournment  of  the  Senate  had  already  arrived,  the 
debate  on  the  bill  did  not  begin  until  the  next  day. 

Over  night  between  February  14  and  15  Williams 
evidently  saw  a  great  light,  for  when  the  bill  came  up  he 
immediately  withdrew  the  Elaine  amendment.1 

In  explanation  of  this  action,  he  said  that  he  had 
offered  the  amendment  in  good  faith  and  that  he  himself 
had  no  objection  to  it,  but  that  upon  conferring  with 
certain  persons  he  had  found  that  if  the  bill  were  passed 
with  the  amendment  the  concurrence  of  the  House  could 
not  be  secured.  This  action  drew  protests  both  from 
the  conservative  Republicans  and  from  the  Democrats. 
Some  of  the  former  said  they  would  not  vote  for  the  bill 
at  all,  unless  the  amendment  were  incorporated  in  it.2 

1  Globe,  p.  1360  et  seq.  "For  instance,  Stewart,  Globe,  p.  1364. 


407]  THE  RECONSTRUCTION  ACT  407 

After  two  days  of  debate,  it  became  clear  that  there 
were  so  many  differences  of  opinion  among  the  members 
of  the  majority  party,  that  unless  they  were  harmonized 
at  once,  no  reconstruction  bill  of  any  character  would  be 
passed  during  the  lifetime  of  the  39th  Congress.  There 
fore,  with  a  view  of  securing  harmonious  action  those 
gentlemen  held  a  party  caucus  on  Saturday  morning, 
February  16.*  A  committee  of  seven,  of  which  John 
Sherman  was  chairman,  was  appointed  to  amend  the  bill 
in  such  a  way  that  it  would  secure  the  support  of  a 
majority  of  the  Republican  senators.  The  result  of  this 
committee's  deliberations  was  first  reported  to  the 
caucus,  where  it  was  slightly  modified,  and  then  to  the 
Senate  a  little  before  midnight  of  that  evening.2  From 
now  on  the  bill  was  known  as  the  Sherman  substitute 
but  as  a  matter  of  fact  it  was  simply  the  Williams  mili 
tary  bill  plus  the  Elaine  amendment,  with  one  slight 
change  in  each.  In  the  military  part,  the  President  in 
stead  of  the  General  of  the  army  was  designated  as  the 
proper  person  to  appoint  the  military  commanders  in 
each  of  the  five  districts  into  which  the  ten  rebel  states 
were  divided.  In  the  caucus,  due  to  the  influence  of 
Sumner,  the  Elaine  amendment  was  modified  so  as  to 
require  the  several  state  conventions  to  insert  universal 
negro  suffrage  in  their  constitutions.3  Though  the 
Democrats  offered  several  amendments  and  made  many 
motions  to  adjourn,  saying  that  it  was  against  their  re 
ligious  scruples  to  work  on  the  Sabbath,  the  bill  was 
passed  after  an  all-night  session  early  Sunday  morning, 
February  17,  1867.  No  analysis  of  the  Senate  debate 
will  here  be  attempted.  If  it  were  necessary,  a  suffi- 


ofk  Herald,  Feb.  18,  1867. 
Globe,  pp.  1458,  1459.  3  Rhodes,  vol.  vi,  p.  19. 


4o8  HISTORY  OF  THE  COMMITTEE  [408 

cient  number  of  extracts  from  the  speeches  of  moderate 
Republicans  could  be  cited  to  show  that  when  this  bill 
was  passed  the  general  opinion  prevailed  that  no  supple 
mentary  reconstruction  legislation  would  be  enacted 
until  after  the  southern  states  had  been  given  a  fair 
chance  to  initiate  movements  looking  towards  the  estab 
lishment  of  governments  in  harmony  with  the  principles 
enunciated  in  the  bill.  Reverdy  Johnson  voted  for  the 
bill,  not  because  he  believed  it  was  either-  just  or  neces 
sary,  but  because  as  a  practical  man  he  saw  that  in  this 
bill  the  southern  whites  were  given  their  last  oppor 
tunity  to  retain  control  of  the  machinery  of  their  gov 
ernments.  Therefore,  he  thought  that  it  was  the  part  of 
wisdom  for  moderate  men  to  unite  in  support  of  the  bill 
before  another  more  harsh  in  its  terms  should  be  brought 
forward.1  The  best  proof,  however,  that  the  prevailing 
opinion  in  the  Senate  when  the  Sherman  substitute  was 
passed,  regarded  it  as  a  finality  in  reconstruction  leg 
islation  at  least  until  the  southern  people  had  been  given 
a  fair  chance  to  act,  is  furnished  by  the  attitude  of  Sum- 
ner  in  the  Senate  and  Stevens  in  the  House.  Gideon 
Welles  states  on  the  authority  of  Senator  Grimes  that 
when  the  Sherman  substitute  was  adopted,  Sumner  was 
violent,  swore  savagely,  and  left  the  Senate  in  a  rage.2 
Concerning  this  substitute,  Sumner  said : 

It  is  reconstruction  without  any  machinery  or  motive  power. 
There  is  no  provision  for  the  initiation  of  the  new  governments. 
There  is  no  helping1  hand  extended  to  the  loyal  people  who 
may  seek  to  lay  anew  the  foundations  of  civil  order  ....  I 
cannot  forget,  also,  that  there  is  no  provision  by  which  each 
freedman  can  be  secured  a  piece  of  land,  which  has  always 
seemed  to  me  important  in  the  work  of  reconstruction.  But 

1  Globe,  p.  1969.  *  Diary,  vol.  iii,  p.  47- 


409]  THE  RECONSTRUCTION  ACT 

all  this,  though  of  the  gravest  character,  is  dwarfed  by  that  other 
objection  which  springs  from  the  toleration  of  rebels  in  the 
copartnership  of  government  ....  while  requiring  suffrage 
for  all  without  distinction  of  race  or  color,  it  leaves  the  ma 
chinery  and  motive  power  in  the  hands  of  the  existing  govern 
ments,  which  are  conducted  by  the  rebels It  is  true 

that  the  suffrage  is  given  to  the  colored  race  ;  but  their  masters 
are  left  in  power  to  domineer  and  even  to  organize.  With 
their  experience,  craft,  and  determined  purpose,  there  is  too 
much  reason  to  fear  that  all  your  safeguards  would  be  over 
thrown,  and  the  Unionists  would  continue  the  victims  of  rebel 
power.  It  is  not  enough  to  say  that  rebels  may  be  disfran 
chised.  You  must  say  they  must  be  disfranchised.  Without 
this,  you  surrender  everything  to  them. 

And  yet  it  has  been  said  that  Sumner  was  a  man  with 
out  guile  and  had  no  vindictive  feeling  toward  the  South.1 
Thaddeus  Stevens  agreed  with  Sumner,  and  on  Monday, 
February  18,  moved  that  the  Senate  amendment  be  not 
concurred  in  by  the  House,  and  that  a  committee  of  con 
ference  be  asked  for.2  The  Washington  correspondent 
of  the  New  York  Independent,  who  was  one  of  the 
shrewdest  observers  and  interpreters  of  political  senti 
ment  then  in  Washington,  wrote  the  following  to  his 
paper  concerning  Stevens'  motives  in  opposing  the  Sen 
ate  amendments : 

A  prominent  point  of  difference  between  a  class  of  Republican 
senators  and  another  class  of  radical  representatives  was  this  : 
Stevens  and  his  friends  insisted  upon  the  disfranchisement  of 
leading  rebels  in  the  preliminary  elections,  and  desired  that  the 
election  of  delegates  to  constitutional  conventions  should  be 
held  under  the  guidance  and  control  of  loyal  men.  The  Senate 
was  willing  to  allow  the  southern  people  to  arrange  the  pre- 

1  Rhodes,  vol.  v,  p.  554.  *  Globe,  p.  1315. 


4io  HISTORY  OF  THE  COMMITTEE  [4IO 

liminary  elections  as  they  chose,  so  long  as  equal  rights  were 
established,  and  felt  no  particular  anxiety  on  this  point,  as  the 
state  constitutions  must  be  accepted  by  Congress  before  repre 
sentation  would  be  granted.1 

Additional  light  is  thrown  on  the  radical  motives  by  a 
speech  of  Boutwell,  who,  in  supporting  Stevens'  motion, 
said  he  objected  to  the  substitute  offered  by  the  Senate 
primarily  because  it  proposed  to  grant  universal  am 
nesty.3  Since  there  were  more  rebels  than  loyal  men  in 
most  of  the  southern  states,  by  the  bill  as  amended  the 
reorganization  of  governments  in  those  states  would  be 
transferred  to  the  rebels. 

"  Though  every  black  man  will  be  secured  in  the  right 
to  vote,"  said  he,  "the  rebels  will  have  the  control  of  the 
militia  and  the  polls.  Under  such  circumstances  do  you 
expect  that  the  negroes,  unaccustomed  to  political  strug 
gles,  timid,  broken  down  in  spirit  by  the  institution  of 
slavery,  can  deprive  the  rebels  of  the  places  of  power 
which  they  now  possess?"  The  answer  to  his  question 
was  obvious,  and  he  concluded  by  declaring  that  Con 
gress  must  extend  a  helping  hand  to  the  loyalists  so  that 
they  could  obtain  control  of  the  southern  state  govern 
ments. 

One  of  the  radical  members  from  Tennessee3  said  he 
had  understood  that  the  giving  of  this  control  to  the 
loyalists  was  to  be  the  purpose  of  additional  legislation 
by  Congress,  but  that  he  found  in  the  bill  which  had 
come  from  the  Senate  universal  amnesty  and  universal 
suffrage.  "  Pass  this  bill  and  it  is  the  final  stroke,  the 
death-blow  to  the  Union  men  and  the  men  of  color  in 
the  South.  They  will  have  no  protection,  their  rights 
will  not  be  recognized." 

1  Independent ,  Feb.  28,  1867.  3  Globe,  p.  1316. 

•   3  Stokes,  Globe,  p.  1317. 


4I  !]  THE  RECONSTRUCTION  ACT 

The  debate  went  on  all  day,  the  conservatives  favoring 
and  the  radicals  opposing  the  Senate  amendment.  On 
the  morning  of  February  19  a  vote  was  taken  on  a  mo 
tion  to  concur  in  the  amendment  of  the  Senate.  Though 
a  large  majority  of  the  Republicans  voted  in  favor  of 
this  motion,  it  was  lost  because  the  Democrats  voted 
solidly  with  Stevens  and  his  minority  of  extreme  radicals 
against  it.1  Stevens'  motion  for  a  conference  committee 
was  then  passed,  and  he,  Elaine,  and  Shellabarger  were 
appointed  to  represent  the  House  on  such  a  committee.2 
The  Senate,  however,  after  some  debate  refused  to  con 
sent  to  a  committee  of  conference,  and  sent  a  message 
to  the  House  that  it  insisted  upon  its  amendments.3 

On  February  19  the  House  held  a  special  evening  ses 
sion  in  order  further  to  consider  what  should  be  done 
about  the  Senate  amendments.  It  is  probable  that  if  the 
vote  on  a  new  motion  which  was  made  to  concur  in  the 
Senate  amendments  had  been  taken  at  this  meeting  it 
would  have  been  carried.  Dilatory  tactics,  however,  were 
employed  by  the  Democrats,  and  with  the  partial  assist 
ance  of  the  radicals  they  were  able  to  prevent  a  vote 
being  taken.4  On  the  next  day  Wilson  made  a  motion 
that  the  amendments  of  the  Senate  be  concurred  in  pro 
vided  that  body  accept  the  following  additional  amend 
ment  : 

No  person  excluded  from  the  privilege  of  holding-  office  by 
the  proposed  amendment  to  the  Constitution  of  the  United 
States  shall  be  eligible  to  election  as  a  member  of  the  conven 
tion  to  frame  a  constitution  for  any  of  the  rebel  states,  nor 
shall  any  such  person  vote  for  members  of  such  convention.0 

1  Globe,  p.  1340.  *Ibid.,  p.  1554. 

* Ibid.t  p.  1570  et  ante.  *Ibid.,  p.  1356  et  seg. 

5 Ibid.,  p.  1399. 


HISTORY  OF  THE  COMMITTEE  [4I2 

Shellabarger,  who  had  been  acting  with  the  radicals, 
then  offered  the  following  as  an  additional  section : 

Until  the  people  of  said  rebel  states  shall  be  by  law  admit 
ted  to  representation  in  the  Congress  of  the  United  States,  any 
civil  governments  which  shall  exist  therein  shall  be  deemed 
provisional  only,  and  in  all  respects  subject  to  the  paramount 
authority  of  the  United  States  at  any  time,  to  abolish,  modify, 
control,  or  supersede  the  same ;  and  in  all  elections  to  any 
office  under  such  provisional  governments,  all  persons  shall 
be  entitled  to  vote,  and  none  others,  who  are  entitled  to  vote 
under  the  provision  of  the  fifth  section  of  this  act ;  and  no 
person  shall  be  eligible  to  any  office  under  any  such  provisional 
governments,  who  would  be  disqualified  from  holding  office 
under  the  provisions  of  the  said  article  of  said  constitutional 
amendment. l 

Both  the  Wilson  and  the  Shellabarger  amendments 
were  agreed  to,  and  in  its  amended  form  the  bill  once 
more  passed  the  House  by  a  vote  of  126  to  46. 

Though  the  radicals  had  not  won  completely,  the  con 
servatives  were  thoroughly  defeated;  for  as  everybody 
recognized,  the  adoption  of  these  two  penal  clauses  made 
it  impossible  for  the  existing  governments  in  the  South 
to  take  the  initiative  in  establishing  new  governments  in 
harmony  with  the  other  provisions  of  the  bill.  That  they 
otherwise  would  have  done  so  is  not  susceptible  of  proof, 
but  nevertheless  it  is  highly  probable  that  they  would. 
Thoughtful  conservative  men,  both  North  and  South, 
were  becoming  alarmed  at  the  radicalism  rampant  in 
Congress,  and  at  the  evident  intention  of  at  least  half 
the  Republicans  to  put  the  southern  states  in  the  hands 
of  the  negroes  and  the  loyal  whites. 

Therefore,  Democrats  like   Reverdy  Johnson,  Thomas 

1  Globe,  p.  1400. 


THE  RECONSTRUCTION  ACT 

A.  Hendricks,1  and  Manton  Marble3  of  the  New  York 
World,  administration  Republicans  like  Raymond,3  and 
conservative  Republicans  like  Stewart4  and  Sherman,4 
advised  the  southerners  to  act  quickly  in  compliance 
with  the  terms  of  the  bill.  Though  this  advice  was 
given  both  before  and  after  the  adoption  of  the  penal 
clauses,  the  disfranchisement  of  nearly  all  those  south 
erners  who  were  then  and  for  years  past  had  been  at  the 
head  of  political  affairs  in  the  South  made  it  impossible 
for  them  to  accept  this  advice  and  take  the  lead  in  form 
ing  such  governments.  Moreover,  the  Elaine  amend 
ment,  pure  and  simple,  might  have  been  self-operating, 
but  the  addition  of  the  Wilson  proviso  made  it  necessary 
to  enact  supplemental  legislation.  In  order  to  carry  into 
effect  this  disfranchisement  of  the  leading  rebels,  it  would 
of  course  be  necessary  to  place  the  machinery  for  setting 
up  the  new  governments  in  the  hands  of  Federal  officials. 
Under  such  circumstances  it  is  natural  that  the  resulting 
governments  were  controlled  by  the  carpet-baggers,  scal 
awags  and  negroes.  Representative  Wilson,  who  was 
the  author  of  the  disfranchising  clause,  stated  later  when 
he  was  advocating  the  supplementary  Reconstruction 
bill,  that  such  a  bill  would  not  have  been  necessary  had 
the  Democrats  not  forced  the  conservatives  to  yield  the 
disfranchising  clause  to  the  radicals  in  order  that  the  en 
tire  bill  be  not  lost.5  As  the  New  York  Nation6  pointed 
out,  the  debt  which  the  radicals  owed  the  Democratic 
party  was  almost  incalculable. 

The  Senate  concurred   in  the  House  amendments  on 
February  20. 7      Though  the  President  might  have  de- 

1  Globe,  p.  1069  et  seq.  *  N.  Y.  World,  Feb.  23,  1867. 

J7V.  Y.  Times,  Feb.  18  and  20,  1867.  *  Globe,  p.  1625  et  seq. 

5  Globe,  ist  sess.  4oth  cong.,  p.  64.  6 Ibid.,  Feb.  21,  1867. 

7  Globe,  p.  1645. 


414  HISTORY  OF  THE  COMMITTEE 

feated  this  particular  bill  with  a  "  pocket  "  veto,  he  pre 
ferred  not  to  evade  the  question,  and  on  March  2  sent 
a  message  to  the  House  announcing  his  dissent.1  The 
message  was  received  with  scant  respect,  and  though 
the  Democrats  attempted  to  sustain  the  veto  by  dilatory 
tactics,  their  scheme  was  squelched  by  Elaine's  moving 
to  suspend  the  rules.  This  motion  was  agreed  to  and 
the  bill  was  again  passed  by  the  necessary  two-thirds 
majority.2  On  the  same  day  the  Senate  took  similar 
action.3 

As  this  was  the  last  piece  of  legislation  with  which  the 
joint  committee  on  reconstruction  was  connected,  its 
enactment  into  law  marks  the  close  of  that  committee's 
history. 

When  the  4Oth  Congress  assembled,  there  was  an  at 
tempt  to  resurrect  the  committee,  but  it  ended  in  failure. 
There  was  no  longer  any  need  for  a  joint  committee, 
as  the  fear  that  the  two  houses  would  not  act  in  con 
cert,  which  had  brought  about  its  appointment  in  the 
first  place,  had  long  since  ceased  to  exist.  Hence,  from 
this  time  on  the  House  had  its  own  special  committee 
on  reconstruction,  while  in  the  Senate  matters  pertaining 
to  that  subject  were  generally  looked  after  by  the  judic 
iary  committee. 


1  Globe,  p.  1729.  ^Ibid.,  p.  1733. 

*  Ibid.,  p.  1976. 


VITA. 


THE  author  of  this  monograph  was  born  in  Talbot 
county,  Georgia,  October  16,  1884.  His  academic,  col 
lege,  and  university  preparation  has  been  as  follows : 
Columbus,  Ga.,  High  School,  1899—1902;  undergraduate 
study  at  Mercer  University,  1902-1905 ;  graduate  study 
at  Harvard  University,  1907  (summer),  and  at  Columbia 
University,  1909-1912.  At  Columbia  University  he 
studied  under  Professors  Dunning,  Robinson,  Giddings, 
Seligman,  J.  B.  Moore,  Shotwell,  Shepherd,  Osgood, 
Goodnow,  Beard,  and  Hayes ;  and  attended  seminars 
under  Professors  Dunning  and  Osgood.  For  the  year 
1910-1911  he  was  Schiff  Fellow  in  American  History. 
He  holds  the  following  degrees  :  B.  S.,  Mercer  Univer 
sity,  1905,  and  A.  M.,  Columbia  University,  1911.  He 
has  filled  the  following  academic  positions  :  Teacher  in 
public  school,  Norman  Park,  Ga.,  1905-1906;  teacher  of 
English  and  history,  Industrial  High  School,  Columbus, 
Ga.,  1906-1909;  instructor  in  history,  Columbia  Univer 
sity,  1912-. 

415 


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